Appeal No. 2005-1407
Application No. 09/978,510
page 3).
We conclude that a prima facie case of obviousness has been
made. Barry would have suggested using low density diesel fuels
in engines to produce low levels of engine emissions (col. 1,
lines 56-57). Barry also teaches that the low density diesel
fuel compositions are “capable of reducing all of the currently
regulated emissions subject to government regulation” (col. 1,
lines 62-63). While Barry discloses that the low density diesel
fuels are particularly suitable for use in underground diesel-
engine mining equipment, Barry would not have suggested this to
be the only use (col. 1, lines 60-61; col. 5, lines 24-27). One
of ordinary skill in the art would have been motivated to use low
emissions fuels in any diesel engine, including a high pressure
common rail diesel engine, and reasonably expect the use to
result in a reduction of engine emissions.
Once the examiner has met the burden of proof for a case of
prima facie obviousness, the burden of proof shifts to the
applicant to overcome the prima facie case with arguments and/or
evidence. Obviousness is then determined by considering the
evidence as a whole. See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992).
Appellants do not dispute the prima facie case of
obviousness; instead, appellants try to overcome the prima facie
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