Patent Interference No. 103,548
suggests very similar oxidation mechanisms for indoles and indolines in the context of
oxidative hair dyeing and that suggestion buttresses the conclusion of obviousness with
respect to using the Grollier ‘500 oxidation system with the indolines of Konrad claims 1-
4.
Lagrange’s arguments to the contrary having been addressed, we conclude that,
to one with ordinary skill in the art Lagrange’s claims 22-23 would have been prima
facie obvious to one with ordinary skill in this art over Konrad claims 1-4 in view of the
facts that:
· Grollier 500 teaches using the oxidation system, albeit with phenylenediamine,
with indoles;
· FR ‘061, like Grollier ‘500, teaches using an iodide/peroxide oxidizing system
with indoles but without phenylenediamine; and,
· Parent suggests equivalent oxidation mechanisms for indoles and indolines in
the context of oxidative hair dyeing.
Discussion: Objective Evidence
Lagrange's initial declaration evidence as to this issue, Cotteret Declaration II,
was addressed in the Decision on Motions (paper no. 49, pp. 14-18), where it was found
to have problems. Notwithstanding the parties' responses to the problems, we find the
evidence unpersuasive as to the nonobviousness of the Lagrange claims.
Lagrange (LOB 32-35) seeks to overcome the prima facie case by providing
objective evidence showing unexpected results using the claimed oxidizing system
when dyeing with indolines. In support thereof, Lagrange has submitted Cotteret
Declaration II (see Part II of Cotteret Declaration II, paper no. 35).
Uptake results for C0 with an oxidizing system of iodide/peroxide, metal salt or
parabenzoquinone have been compared to results obtained using a system consisting
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