Appeal No. 2004-2025
Application 10/120,498
knowledge in the art that low sulfur content is desirable as shown by Kaneko, routinely
following the Phase 3 reformulated gasoline standards would have reasonably prepared gasoline
composites having a sulfur content at the low end of the average limit of the Phase 3
reformulated gasoline standards.
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in the combined teachings of Jessup, Kaneko and the
Phase 3 reformulated gasoline standards with appellants’ countervailing evidence of and
argument for nonobviousness and conclude that the claimed invention encompassed by appealed
claims 1 through 14, 18 through 32, and 36 through 47 would have been obvious as a matter of
law under 35 U.S.C. § 103(a).
We summarily affirm the grounds of rejection collectively encompassing all of appealed
claims 1 through 14, 18 through 32, and 36 through 47 under the judicially created doctrine of
obviousness-type double patenting because appellants have stated the intention to file “such
Terminal Disclaimers as are needed . . . once allowable subject ,matter is deemed to exist in the
subject application” (brief, page 8).
The examiner’s decision is affirmed.
Other Issues
We decline to exercise our authority under 37 CFR § 1.196(b) (2003) and enter on the
record a new ground of rejection based on the Phase 2 reformulated gasoline standards which are
encompassed by appealed claim 1 and claims dependent thereon (see above n. 6), leaving it to
the examiner to make factual findings therefrom along with any other applicable prior art
developed by the examiner, in the event of further prosecution of the appealed claims before the
examiner subsequent to the disposition of this appeal.
We observe that appealed claim 44 of this application is a duplicate of appealed claim 44
in application 10/120,421. We suggest that in the event of further prosecution of appealed claim
44 before the examiner subsequent to the disposition of this appeal, the examiner should
consider whether these applications comply with 35 U.S.C. § 101.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
AFFIRMED
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