Ex parte HENDERSON

Board of Patent Appeals and Interferences

Jul 15, 1998

08149042 (B.P.A.I. Jul. 15, 1998)

Application for patent filed November 8, 1993. According to1
appellant, this application is a continuation-in-part of Application
08/011,262, filed January 29, 1993 (abandoned); which is a continuation-
in-part of Application 07/783,210, filed October 28, 1991 (abandoned).
1
Paper No. 18
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte DOUGLAS H. HENDERSON
______________
Appeal No. 96-2800
Application 08/149,0421
_______________
ON BRIEF
_______________
Before RONALD H. SMITH, SOFOCLEOUS and WARREN, Administrative
Patent Judges.
RONALD H. SMITH, Administrative Patent Judge.

DECISION ON APPEAL
Appeal No. 96-2800
Application 08/149,042
2
This is an appeal from the final rejection of claims 1-11
and 15-22, all the pending claims in the application.
The subject matter relates to an unleaded aviation
gasoline composition. Claim 1 is illustrative of the appealed
claims and reads as follows:
1. An unleaded aviation gasoline composition which
comprises:
(a) from 85 to 92 volume percent of aviation alkylate;
(b) from 4 to 10 volume percent of at least one ether
selected from methyl tertiary-butyl ether, ethyl tertiary-
butyl ether, methyl tertiary-amyl ether, and mixtures of any
two or all three of the foregoing ethers;
(c) from zero to 10 volume percent of one or more other
hydrocarbons falling in the aviation gasoline boiling range;
and
(d) from 0.25 to 0.6 gram of manganese per gallon as one or
more cyclopentadienyl manganese tricarbonyl compounds;
wherein the sum of the amounts of (a) and (b), and also of (c)
if present, is 100 volume percent; with the proviso that (a),
(b) and (d), and also (c) if present, are proportioned such
that said composition has (i) an ASTM D 2382 heat of
combustion of at least 18,000 BTU per pound, and (ii) a
minimum knock value lean rating octane number of 100 as
determined by ASTM Test Method D 2700 and wherein motor method
octane ratings are converted to aviation ratings in the manner
described in ASTM Specification D 910-90.
The references relied on by the examiner are:
Carmody 2,391,084 Dec. 18, 1945
Evans et al. (Evans) 2,409,746 Oct. 22, 1946
Brown et al. (Brown '351) 3,127,351 Mar. 31, 1964
Appeal No. 96-2800
Application 08/149,042
3
Brown et al. (Brown '606) 3,272,606 Sep. 13, 1966
Claims 1-11 and 15-22 stand rejected under 35 U.S.C. §
103 as unpatentable over Carmody in view of Evans, the
admitted prior art, Brown '351 and Brown '606. Claims 1-11
and 15-22 also stand provisionally rejected under the
judicially created doctrine of obviousness-type double
patenting as unpatentable over claims 2-5 and 18-21 of
copending application Serial No. 08/312,048. After a careful
consideration of the entire record, including the appellant's
position as set forth in the briefs and the examiner's
position as set forth in the answer, we have decided to
reverse the rejection under 35 U.S.C. § 103 and to affirm the
provisional obviousness-type double patenting rejection.
With respect to the rejection under 35 U.S.C. § 103, we
find that we are in substantial agreement with appellant's
position as set forth in the brief and reply brief.
Accordingly, we adopt appellant's position as our own. We
agree with appellant that the examiner has not established a
prima facie case of obviousness. As pointed out by appellant,
Evans expressly teaches that their ethers fail to improve
octane ratings (col. 3, lines 1-5) and possess poor BTU
Appeal No. 96-2800
Application 08/149,042
4
content (col. 1, lines 21-23), thereby teaching away from the
claimed invention which specifically requires an octane number
of 100 and a heat of combustion of 18,000 BTU per pound.
With respect to the provisional rejection on the ground
of obviousness-type double patenting, appellant has not
contested the propriety of the rejection. Rather, appellant
urges that
"upon favorable action on this appeal, this provisional
rejection will be attended to." Accordingly, the obviousness-
type double patenting rejection is affirmed.
The decision of the examiner is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
Appeal No. 96-2800
Application 08/149,042
5
RONALD H. SMITH )
Administrative Patent Judge )
)
)
)
MICHAEL SOFOCLEOUS ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
CHARLES F. WARREN )
Administrative Patent Judge )

Appeal No. 96-2800
Application 08/149,042
6
Philip M. Pippenger
Patent & Trademark Division
Ethyl Corporation
451 Florida Blvd.
Baton Rouge, LA 70801
Appeal No. 96-2800
Application 08/149,042
7
RHS/cam