Patent Interference No. 103,548
Accordingly, the issue is whether the dyeing agents of Lagrange patent and
reissue claims 22-23 would have been obvious over Konrad claims 4-7 in view of the
prior art as represented by Grollier ‘ 500, French '061 and Parent ‘404. The burden is on
Konrad to demonstrate that the dyeing agents of Lagrange claims 22-23 would have
been obvious in view of the compositions of Konrad’s claims designated to correspond
to the counts, Grollier ‘ 500, French '061 and Parent ‘404.
Scope and Content of Prior Art
· Konrad claims 4-7 are directed to oxidative dye precursors comprising an
indoline and a gel-type carrier.
Level of Ordinary Skill in the Art
· There is no dispute regarding the level of ordinary skill in the art. A person of
ordinary skill in the art is one who formulates cosmetic products.
Differences Between Lagrange Claims and Prior Art
· Konrad claims 4-7 distinguish from Lagrange claims 22-23 only in not teaching
the iodide/peroxide oxidizing system.
Discussion: The Prima Facie Case
There is no dispute that Konrad claims 1-4 teach the indolines and Grollier ‘500
teaches the oxidation system set forth in Lagrange claims 22-23. The issue is whether
one having ordinary skill in the art would have applied Grollier’s teaching of using the
oxidation system, albeit with phenylenediamine, with respect to indoles to Konrad’s
indolines thus rendering the subject matter of Lagrange’s claims obvious. In that regard,
FR '061 (see Examples, pp. 8-19, and claim 1) applies the Grollier oxidation system to
an indole without phenylenediamine and Parent ‘404 (see Example 2 which descibes
oxidation hair dyeing with an indoline and Example 3 which describes oxidation dyeing
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