Patent Interference No. 103,548
indoline and, like Lagrange reissue claim 31, it also further contains an additive. Konrad
claim 4 provides for cationic or non-ionic surfactants as the additive and these are
identically included among the list of eleven different possible types of additives set forth
in Lagrange reissue claim 31. Consistent therewith, Konrad argues, presumably for the
purpose of establishing anticipation, that "Konrad's claim 4 also claims the use of
anionic, cationic, non-ionic or ampholytic as a surfactant" (KB 25).
However, Lagrange reissue claim 31 is not otherwise identical to Konrad claim
4. Lagrange reissue claim 31 describes a tinctorial composition, including the indoline
and an additive, comprising a medium containing a water/solvent mixture, where the
solvent is selected from a group of thirteen possible compounds, whereas Konrad claim
4 describes a tinctorial composition, including the indoline and an additive, comprising a
gel carrier. While the composition of Lagrange reissue claim 31 does not preclude a gel
carrier, it does require a particular water/solvent medium that Konrad claim 4 does not
teach. Given the infinite number of possible medium materials encompassed by Konrad
claim 4, one of ordinary skill cannot conclude that it teaches selecting any one of the
thirteen possible mediums described by Lagrange reissue claim 31. The requisite
identity does not exist and, accordingly, the Lagrange reissue claim 31 composition is
not anticipated by Konrad claim 4.
Konrad has not met its burden of showing that Lagrange reissue claim 31 is the
same patentable invention as Lagrange patent claim 5 or Konrad claim 4 based on
anticipation grounds.
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