Patent Interference No. 103,548
with respect to the uptake data and the adequacy of the comparative testing, the hue
and color data are just as inconclusive.
Lastly, we observe that, although Lagrange argues that the claimed C2-C4
indolines are novel and unobvious, Lagrange's own specification makes no distinction
between them and other preferred indolines (i.e., C0, C1, C2, and C4),. The Lagrange
Patent (col. 2, lines 1-2) discloses that C0 is “particularly preferred”, although it is now
precluded from the claims. Moreover, other than a description of the resulting hair colors
associated with the use of each of the preferred indolines, Lagrange Patent '637 does
not provide any of the comparative uptake test data on which Lagrange has relied upon
to establish the nonobviousness of the C2-C4 indolines. None of the asserted benefits
from using C2-C4 indolines are disclosed. According to Lagrange (paper no. 66,
paragraph 44), the selection of C2-C4 solves several problems in an unobvious way:
· "they allow the production of blue-green shades instead of reddish shades";
· "they provide an improved uptake over the structurally closest 5,6-
dihydroxyindoline"; and,
· "a person skilled in the art faced with the problem of providing blue-green tone
dyestuffs would certainly not have been directed to use a 5,6-dihydroxyindoline and
substitute it on the nitrogen atom".
However, we can find none of these asserted benefits in the specification of Lagrange’s
patent. It would appear therefore that, as Konrad has argued (KOB 6, paragraph 19),
Lagrange may not be in a position to now attach, for example, an unexpected uptake
property to the claimed C2-C4 indolines. In re Lundberg, 253 F.2d 244, 247, 117 USPQ
44
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