Patent Interference No. 103,548
Obviousness
Lagrange reissue claim 31 differs from Lagrange patent claim 5 or Konrad claim
4 in particularly providing a water/solvent medium where the solvent is selected from a
group of thirteen possible compounds, including ethanol.
Konrad also seeks to meet its burden of establishing that Lagrange reissue claim
31 is the same patentable invention as Lagrange patent claim 5 or Konrad claim 4 on
obviousness grounds. According to Konrad, it would have been obvious to one of
ordinary skill in the art to provide a water/solvent medium where the solvent is for
example ethanol in view of two Goldemberg publications. Konrad relies on
· Robert Goldemberg; J. Soc. Cosmet. Chem 10, 1959, pp. 291-306; and,
· Robert Goldemberg et al; J. Soc. Cosmet. Chem 19, 1968, pp. 423-445;
to argue (see KB 23) that "the solvents are well known excipients for supporting
solubility or solubilization" in hair dye formulations (KB 23).
Goldemberg provides an overview of the factors a hair dye formulator should
consider in making hair dye formulations. Various dyes are discussed, including
oxidation dyes. There is also a section (see pages 300-301) discussing solvents,
including for example water mixtures and ethanol, the selection of which, it states (p.
300), may provide greater dye concentration for increasing hair color depth (i.e.,
increasing dye uptake). Goldemberger et al is a study of the effect of additives on pH
and other properties of oxidation hair dyes. For comparison purposes, the study uses
commercial oxidation hair dyes with "Base Solutions" (page 429) comprising
solvent/water mixtures that include for example propylene glycol. Both ethanol (i.e.,
60
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