Appeal No. 2004-2025
Application 10/120,498
thereof. Indeed, Kaneko discloses that a “serious problem is that MTBE tends to increase
nitrogen oxides (NOx) in exhaust gas” (col. 1, ll. 53-55; emphasis supplied), and further discloses
Reid vapor pressures (col. 2, ll. 57-60) falling within the ranges shown by Jessup, which
encompass the Reid vapor pressure range specified in appealed claims 1, 3 and 26.
Thus, appellants’ unsupported arguments are of little persuasion. See In re Lindner,
457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). Indeed, contrary to these and similar
arguments, we are of the opinion that the interest of a refiner in complying with such regulations
as the Phase 3 reformulated gasoline standards and in reducing the amount of sulfur for reasons
known in the art would have lead this person to low amounts of sulfur falling within the average
limit range for sulfur specified in the Phase 3 regulations. As we discussed above, Kaneko
discloses a preference for under 20 ppmw sulfur and illustrates gasoline composites with 2, 3 and
4 ppmw sulfur.
Appellants further submit that the California Phase 3 Regulations cannot be applied with
regard to, among others, claim 44 because this claim finds “support in U.S. Serial No.
09/266,901, the filing date of which precedes the publication of the CARB Phase 3 Gasoline
Regulations” (brief, page 8). In this respect, appellants allege that “[t]he present application is a
continuation of U.S. Serial No. 09/603,900, which is in turn a continuation-in-part of U.S. Serial
No. 09/266,901,” which latter application is submitted to specifically disclose “the need and
desire to be free of ethers such as MTBE, and that such can be accomplished by controlling the
amount of sulfur to less than 10 ppm” (id.).
We cannot consider appellants’ contention because there is no paper in the official file of
the present application, and indeed, no information in the electronic records of the USPTO,
which establishes that parent application 09/603,900 is in fact a continuation-in-part of
application 09/266,901. Furthermore, appellants have not established that the Phase 3
reformulated gasoline standards of 13 CCR §2262 were not disclosed in public notices prior to
the date of “publication” of the regulations, that is, the date that this section of the code was
added to 13 CCR §2262.
Finally, we are not convinced by appellants’ contention (brief, page 8) that the Phase 3
reformulated gasoline standards would not have suggested controlling sulfur to less than
10 ppmw because, as we have stated above, one of ordinary skill in this art, armed with the
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