Patent Interference No. 103,548
discussion therein applies to any dye/oxidation dye as part of an effort to improve their
coloring capabilities. The second argument is also unpersuasive. As already discussed,
Lagrange reissue claim 31 does not preclude a gel carrier. Accordingly, the issue is not
whether Lagrange reissue claim 31 would have been obvious over Konrad claim 4 for
having substituted the Konrad carrier with Lagrange's medium. The issue is whether it
would have been obvious to provide the Konrad claim 4 composition with a medium that
is a water/solvent mixture of the kind described by Lagrange reissue claim 31.
Objective Evidence
Konrad has established a prima facie case of obviousness. Accordingly, the
burden shifts to Lagrange to come forward with evidence of nonobviousness to
overcome the prima facie case. In that regard, Lagrange (LOB 37-45) directs our
attention to Cotteret II which discloses the following uptake results:
· Stearyl alcohol/coconut oil (Composition C – Konrad’s medium) = 20.2 (natural) and
29.9 (permed)
· Ethanol (Composition D) = 24.8/32.8
· Propylene glycol (D) = 24.2/33.2
· Prp glcl monomethylether (D) = 22.1/32.2
· Ethylene glcl monobutyl ether (D) = 22.6/31.7
· Methyl lactate (D) = 25.4/34.9
Cotteret II allegedly demonstrates that, compared to the medium used in Konrad claim
4's formulation (Composition C), the other listed solvents provide better uptake, whether
on natural or permed hair.
We have carefully reviewed the objective evidence but find that it suffers from
some of the same deficiencies discussed earlier; namely, that the results are not
commensurate in scope with what is claimed. For example, Lagrange’s reissue claim 31
62
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