Appeal No. 2004-2025
Application 10/120,498
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).
The plain language of claim 1 requires that the claimed method of blending unleaded
gasolines comprises at least the steps of blending component streams from an oil refinery,
keeping the blend substantially free of ether compounds, that is, an amount of less than 0.5 wt. %
(specification, page 12, l. 27, to page 13, l. 1), keeping the sulfur content at less than 10 ppmw,
and controlling the blending such that the blended unleaded gasoline is in compliance with a
California Predictive Model. Appealed claim 3, dependent on claim 1, further limits that claim
by the steps of adjusting the blends based on the results of testing to maintain compliance with
the California Phase 2 or Phase 3 Predictive Model.
We have carefully reviewed the record on this appeal and based thereon find ourselves in
agreement with supported position of the examiner that, prima facie, the claimed gasoline
composites encompassed by appealed claim 44 and the claimed method of blending of appealed
claim 3 would have been obvious over the combined teachings of Jessup, Kaneko and the Phase
3 reformulated gasoline standards6 to one of ordinary skill in this art at the time the claimed
invention was made. We add the following to the examiner’s analysis.
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 Table 1 are limited to the cap limits.
[Specification, page 10, l. 27, to page 11, l. 9.]
6 The examiner cites the Phase 3 reformulated gasoline standards in the statement of the
rejection but mentions both the Phase 2 and the Phase 3 reformulated gasoline standards in the
discussion of the rejection. We consider here only the Phase 3 reformulated gasoline standards
because this regulation is cited in the statement of the rejection. Cf. In re Hoch, 428 F.2d 1341,
1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970)
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