Appeal No. 2005-1407
Application No. 09/978,510
Great Lakes Plastic, 75 F.3d 1568, 37 USPQ2d 1626 (Fed. Cir.
1996). The motivation or suggestion to modify the references may
come from the references themselves, the knowledge of one of
ordinary skill in the art, or from the nature of the problem to
be solved. See id. To show a prima facie case of obviousness,
the modification must also have a reasonable expectation of
success. See In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ
375 (Fed. Cir. 1986).
The Barry reference teaches diesel fuels having a cetane
number in the range of 50 to 60, a specific gravity typically in
the range of 0.82 to 0.83, a viscosity typically in the range of
1.7 to 1.9 cS at 40/C, and a sulfur content no greater than
0.1 wt% (col. 2, lines 21, 60-67). Barry discloses that the use
of these low density fuels in diesel engines will produce low
levels of emissions, making the use of these fuels particularly
suitable in underground diesel-engined mining equipment (col. 1,
lines 12-14, 60-61). Barry does not disclose utilizing the fuels
in high pressure common rail engines.
The examiner argues that it would have been obvious to
modify the teachings of Barry by using the fuel of Barry in a
high pressure common rail engine “because one would utilize a
known diesel fuel in any diesel engine regardless of its specific
features and expect the engine to work effectively” (answer,
3
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