Appeal No. 2004-1939
Application 10/120,497
We affirm.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the answer and to the brief for a complete exposition thereof.
Opinion
Considering first the ground of rejection under § 103(a), in order to review the
examiner’s application of prior art to a claim, we must first interpret the claim terms must by
giving them the broadest reasonable interpretation in light of the written description in the
specification, including the drawings, as it would be interpreted by one of ordinary skill in this
art. See, e.g., In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997).
In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989). The plain language
of appealed claim 44 specifies gasoline composites that are substantially free of oxygenates, that
is, contains less than 0.5 wt. % of oxygenates, which include methyl tertiary butyl ether (MTBE)
(specification, e.g., page 2, ll. 12-13, and page 12, ll. 21-24), and have an octane number falling
within the range of at least 90(R+M)/2 and a sulfur content falling within the range of zero to
less than 10 ppmw, and are in compliance with the California Phase 3 Predictive Model.4 We
note
here that claim 44 and appealed claim 26 are product claims, the latter being a product-by-
process claim dependent on claim 1 which is drawn to methods of blending unleaded gasoline.
See generally, In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
4 Appellants explain that the California Predictive Model with respect to the Phase 2 and Phase
3 reformulated gasoline standards tabulated in specification Table 1 (see above note 2), showing
“Flat Limit,” “Averaging Limits” and “Average Limit,” and “Cap Limit” on the amounts of
regulated gasoline composite ingredients,
is designed to allow producers to comply with the Phase 2 or Phase 3 gasoline
requirements by producing gasoline to specifications different from either the
averaging or flat limit specifications set forth in the regulations. However, producers
must demonstrate that the alternative Phase 2 or Phase 3 gasoline specifications will
result in equivalent or lower emissions compared to Phase 2 or Phase 3, respectively,
gasoline meeting either the flat or averaging limits as indicated by the Predictive
Model. Further, the cap limits must be met for all gasoline formulations, even
alternative formulations allowed under the California Predictive Model. When the
Predictive Model is used, the eight parameters of Tables 1 and 2 are limited to the cap
limits. [Specification, page 10, l. 21, to page 11, l. 2.]
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