Patent Interference No. 103,548
· Preliminary Motion 5 - under 37 CFR § 1.633(c)(3) to redefine the interfering
subject matter by designating claims 22 and 23 of the Lagrange patent to
correspond to Count 2, filed June 4, 1996 (paper no. 30) [KPM5].
· Preliminary Motion 7 - under 37 CFR § 1.633(c)(3) to redefine the interfering
subject matter by designating claims 22, 23 and 30-33 of Lagrange reissue
application to correspond to Count 2, and Lagrange reissue claim 34 to
correspond to Count 3, filed March 31, 1997 (paper no. 63) [KPM7].
In deferring a final decision on LPM2, the obviousness of the Lagrange Patent claims 22-23 in
light of the subject matter of Konrad claims 4-7 and Grollier '500 was raised (paper no. 49, p. 35). It was
also noted that, in contrast to Lagrange Patent claims 22-23, Grollier was not directed to indolines but to
the use of a mixture of dihydroxyindoles and a phenylenediamine. This raised the question of whether the
"effect of Composition (B) of Grollier '500 is due to the dihydroxyindole, the phenylenediamine or the
mixture of both?" (paper no. 49, pp. 35-36). To answer this question, two new references were cited:
French '061 and Parent '404. It was further noted that, during the hearing, Lagrange called attention to
Chavdarian for the purpose of showing how indolines oxidize to indoles (paper no. 49, p. 36). Finally,
certain "loose ends" with respect to Cotteret II were commented upon. It was ordered that the parties be
authorized to submit supplemental declarations to overcome objections by opponents and the comments
in the decision (paper no. 49, p. 38). Lagrange responded with a Supplement to Lagrange's Opposition to
KPM5 (paper no. 62, filed March 31, 1997) wherein the "loose ends" in Cotteret II were addressed.
It was also ordered that the parties comment, in their supplemental affidavit and/or briefs, "on the
relevance of Parent '404 and French '061" (paper no. 49, p. 38).
Finally, it was ordered that a rebuttal testimony period be set to permit filing of rebuttal affidavits
and for cross-examination (paper no. 49, p. 38).
The reissue application identified in Lagrange's aforementioned Notice of Filing a Reissue
Application includes reissue claims 22 and 23 directed to a multicomponent dyeing agent. They are
identical to patent claims 22 and 23 which are the subject of KPM5. Pursuant to 37 CFR § 1.642, the
Lagrange reissue was added to this interference (Decision on Preliminary and Other Motions, paper no.
49). As a result of adding the reissue application to the interference, the interference was redeclared
(paper no. 49, p. 42) (see discussion supra). Like Patent claims 22 and 23, reissue claims 22 and 23
were also designated as not corresponding to a count.
The parties were given an opportunity to address their agreement or disagreement with the
manner in which the Lagrange reissue claims were designated and, accordingly, permitted to file
additional preliminary motions under 37 CFR § 1.633(c)(3) or (4) (paper no. 49, p. 41). Parties were also
permitted to file supplemental affidavits in support of the preliminary motions, oppositions and affidavits in
support of the oppositions. Parties were not permitted to file replies (paper no. 49, p. 41). In response to
the Order Redeclaring the Interference, Konrad moved under 37 CFR § 1.633(c)(3) to redefine the
interfering subject matter by designating Lagrange reissue claims 22 and 23 as corresponding to the
counts (KPM7).
KPM7 was filed on March 31, 1997 (paper no. 63), after the Decision on Preliminary and Other
Motions. The motion was supported by a third declaration of Höffkes (Höffkes 3, filed April 21, 1997, see
paper no. 65) and Grollier '500. Lagrange filed an opposition (Opposition to KPM7, paper no. 66, filed
May 2, 1997) to the motion supported by a fifth Cotteret declaration (Cotteret V; paper no. 66, filed May 2,
1997; see LR 24-25).
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