Patent Interference No. 103,548
with an indole; columns 4-5) suggests that equivalent oxidation mechanisms are
operating when either indoles or indolines are used during oxidative hair dyeing. FR
'061 and Parent '404 would have led one having ordinary skill in the art to conclude that
Grollier’s oxidation system is equally applicable to indolines. Accordingly, it would have
been prima facie obvious to use the Grollier ‘500 oxidation system with the indolines of
Konrad claims 1-4 in view of the teachings of FR '061 and Parent ‘404 to obtain the
composition of Lagrange claims 22-23.
Lagrange’s principal argument45 (LOB, paragraphs 11-17) is that indoles and
indolines are not equivalent because, in contrast to indolines, (1) indoles are unstable
(LOB, paragraphs 11-17), and (2) indoles follow a different oxidation mechanism, citing
the Chavdarian publication (exh. 18) (LOB, paragraph 12). This argument is
unpersuasive for the same reasons discussed earlier. We add that instability is not
synonymous with a difference in chemical properties. While instability may reduce the
probability of success, once achieved, indoles appear to perform identically as
indolines. Regarding oxidation mechanisms, Chavdarian is directed to oxidative studies
on catecholamines in the context of biological systems. This may be irrelevant to the
subject of oxidation mechanisms of indoles and indolines in the context of oxidative hair
dyeing.
Lagrange also argues (LOB, paragraphs 13-17) that Grollier’s use of
phenylenediamine in conjunction with indole produces a different dyestuff; i.e., they
45 Lagrange also argues that Grollier does not specifically disclose N-substituted indoles (Opposition
Brief, paper no. 99, paragraph 10). However, as Konrad has pointed out (Reply Brief; paper no. 107,
paragraph 4), the claims are not so limited.
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