Patent Interference No. 103,548
one to compare uptakes and yet a comparison cannot be made when the difference
reaches 10, is not fully explained. This is especially important since the )H difference
between the inventive C2 and C0, for permed grey hair, is 10.6 and the )H difference
between the two inventive C2 and C4 indolines, for permed grey hair, is 9 (LRB 23). It is
not understood why a )H of 9 would permit one to compare the C2 uptake to that of C4
but a )H of 10.4 would suddenly preclude one from comparing C2 to C0. Here the data
suffers from inadequate explanation and testing. Considering how close the )H results
for C4 and C2 are to Lagrange’s bright line, it would have been informative to have had
)H results for C4 and C0, and/or for C4 and C1. Needless to say, there is no data at all
with respect to C3. This additional data could have revealed Lagrange’s logic to be the
rule instead of, as now seems the case, a matter of conjecture.
In totality, we do not find that Lagrange has supported its argument for ignoring
the uptake results for C0 in assessing whether Lagrange’s C2 and C4 indolines have
unexpectedly better uptake. Accordingly, taking into account the superior uptake
exhibited by the C0 indoline, notwithstanding that the uptakes for C2 and C4 appear to
be somewhat better than for C1, the uptake data, on which Lagrange (LB 34) has placed
the greatest reliance for demonstrating "surprising and unexpected" differences
between the claimed indolines and that of the prior art, is, at best, inconclusive.
Turning to the "hue" and “color” results (see Tables 3A and 3B), it is not entirely
clear in what way this data helps establish unexpected results for Lagrange's C2-4 alkyl
N-substituted indolines. Suffice it to say that, for the same reasons that we have given
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