Appeal No. 96-2800
Application 08/149,042
Brown et al. (Brown '606) 3,272,606 Sep. 13, 1966
Claims 1-11 and 15-22 stand rejected under 35 U.S.C. §
103 as unpatentable over Carmody in view of Evans, the
admitted prior art, Brown '351 and Brown '606. Claims 1-11
and 15-22 also stand provisionally rejected under the
judicially created doctrine of obviousness-type double
patenting as unpatentable over claims 2-5 and 18-21 of
copending application Serial No. 08/312,048. After a careful
consideration of the entire record, including the appellant's
position as set forth in the briefs and the examiner's
position as set forth in the answer, we have decided to
reverse the rejection under 35 U.S.C. § 103 and to affirm the
provisional obviousness-type double patenting rejection.
With respect to the rejection under 35 U.S.C. § 103, we
find that we are in substantial agreement with appellant's
position as set forth in the brief and reply brief.
Accordingly, we adopt appellant's position as our own. We
agree with appellant that the examiner has not established a
prima facie case of obviousness. As pointed out by appellant,
Evans expressly teaches that their ethers fail to improve
octane ratings (col. 3, lines 1-5) and possess poor BTU
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