Patent Interference No. 103,548
· Konrad: Because the dyes used in 1992 and 1993 have now decomposed;
Konrad preferred comparing colored strands and considers it more reliable than
comparing with colored paper (Hoffkes Declaration 3, paper no. 65).
· Lagrange: Hoffkes Declaration 3 says they no longer have the indolines,
however they have requested synthesis department to prepare them again
(Cotteret Declaration V, 1.).
17. What process parameters were used in the Hoffkes experiments?
· Konrad: 1g hair strand; 2g composition; 45 minutes in atmospheric oxygen
(Hoffkes Declaration 3, #65).
The parties agree that the Munsell system and Nickerson equation are a
scientifically correct and reasonably objective means of determining uptake, selectivity,
and hue for a dyed hair sample. Lagrange's results are made more objective as a result
of the use of a spectrophotometer, although the spectrophotometer settings that were
used in the comparative testing are not specified. The experimental error in using such
a technique appears to be low. Accordingly, Lagrange's data deriving from the Munsell
system and Nickerson equation can be relied upon to establish unexpected
improvements in uptake, selectivity and hue.
While hair samples could have assisted the panel in comparing the effect of
different indolines, both parties appear to agree that, due to the instability of the dye’s
coloring effect over time, this would have been of limited value. Konrad has provided
hair samples but they are based on dye formulations made many years ago. Although
Konrad had the opportunity to provide hair samples with freshly prepared dyes (Hoffkes
Deposition, paper no. 105, p. 62), they were not submitted. Lagrange has provided no
hair samples at all. Accordingly, our analysis of Lagrange's objective evidence of
nonobviousness is limited to the recorded values for )E and )H set forth in the Cotteret
declarations.
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