Patent Interference No. 103,548
provided more uniform hair coloring, more recent results are comparable.
Consequently, the "selectivity" data is, at best, inconclusive on the issue of
nonobviousness of the Lagrange's C2-4 indolines.
Turning now to the "uptake" results (see data in Tables 1A and 1B supra), we
observe that Lagrange has only conducted one or two dyeings (LR 38, lines 18-19).
This is insufficient. Cotteret admits (LR 64) that uptake results differ depending on the
batch of hair being dyed. Moreover, porosity of the hair (i.e., hair type) is a relevant and
critical variable in determining uptake. Lagrange (LRB 25) admits this is the case:
The second inconsistency alleged by Konrad relates to the difference in uptake on
permed hair of the N-methyl and N-ethyl compounds in Declaration I versus
Declaration IV. ... However, as implicitly acknowledged by Konrad, the porosity (as
opposed to color) of the hair samples may have been different with respect to the
hair samples used in connection with these two declarations.
(LRB 25). In other words, the uptake results which are submitted as evidence of
unexpected results for the claimed indolines may in fact have been peculiar to the
porosity of the samples of dyed hair. Since only one or two tests have been conducted,
there is no way of knowing whether or how extensive an influence hair porosity had on
the final uptake values. Because of differences in batches and porosity and the real
possibility of inconsistent results, the uptake results are inconclusive.
We also observe that the uptake results for C1 and C2 shown in Cotteret IV are
not the same as those shown in Cotteret I. This raises questions about the
reproducibility of the results. For example, for natural hair, the uptake results in
Declaration IV are significantly lower than those provided in Declaration I, and yet for
the permed hair, the results are similar. This begs for more comparative testing.
39
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