Patent Interference No. 103,548
applied after dyeing. The manner in which the experiments were conducted appear
to be different and may have influenced the results.
Thus, the experimental evidence is unpersuasive. Too many variables were changed to
attribute differences in uptake, with respect to indolines, to the use of the claimed
iodide/peroxide system.
We take note of Konrad's argument (KB, paragraph top of p. 12) that the prior art
supports the view that indoles and indolines behave similarly and, in support thereof,
directs us to statements made by Dr. Hoffkes; see Hoffkes’ third Declaration and Dr.
Hoffkes’ Deposition (KR 75-77), wherein Hoffkes criticizes the Cotteret declaration
evidence for 1) not providing side-by-side comparisons where only the oxidizing system
is different, 2) applying different times when comparing with Konrad’s process, and 3)
using a premix and comparing that with a post-peroxide treatment. In rebuttal, Lagrange
(LOB, paragraph 39) has submitted Cotteret Declaration V. Therein, in response to the
criticism, Lagrange presents the former uptake results in terms of the CIELAB system of
colorimetry. As a result, the uptake now appears to be 25% better when dyed per
Lagrange’s iodide/peroxide system than with Konrad’s peroxide-only system. However,
notwithstanding this improvement, we are not persuaded that this last declaration helps
to overcome the problems with the earlier objective evidence of nonobviousness (i.e.,
Cotteret Declaration II). In fact, as a result of the CIELAB results, we are now confused
about what Lagrange considers to be unexpected. Whereas the previous results
demonstrated “surprising” improvement for the uptake on permed hair only, the CIELAB
results now show improvement for both natural and permed hair. There is an
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