Patent Interference No. 103,548
The testing is not only inadequate, the strict parameters of the tests limits the
scope of any conclusion that may be drawn from the data. Only two formulations and
oxidizing systems have been compared: composition A/B (Cotteret I, pp. 2-3;
"peroxide") and composition E (Cotteret III, p. 4, per Hoffkes Declaration 1; "oxygen").
Only 4 indolines have been tested: C0, C1, C2, and C4, and only in the hydrobromide salt
form. Also, the tests are limited to grey hair. Only certain solvents are used. The
narrowness of the testing parameters makes it difficult to tell whether any unexpected
improvement in uptake is actually due to differences in indoline chemical structure or
from the particular testing conditions employed. In addition, given the limited focus of
the experiments and considering the breadth of Lagrange’s claims, which cover a broad
range of indolines and innumerable dyeing and formulation systems, any conclusions
that could be drawn from Lagrange’s comparative testing data would not be considered
commensurate in scope with what is claimed. In re Tiffin, 448 F.2d 791, 171 USPQ 294
(CCPA 1971).
Setting aside the matter of inadequate and narrow testing, there is the more
significant question of whether C2 and C4 even have comparatively better uptake at all.
To reach the conclusion that C2-C4 have unexpectedly improved uptake as compared to
both C0 and C1, Lagrange has had to address a significant problem with the data; that
is, relative to C0 uptake, C2 and C4 do not have better uptakes (see Tables 1A and 1B
which show C0 has the highest uptake of any indoline tested).
Lagrange argues that the uptakes of C2 and C4 cannot be fairly compared to that
of C0 because of differences in color and hue. According to Lagrange, C0's higher )E
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