Patent Interference No. 103,548
Konrad claim 4, whose designation as corresponding to the count it does not dispute.
We will focus on Lagrange patent claim 24 since it is the closest presumed prior art.
Looking at Lagrange patent claim 24 as the presumed prior art, Lagrange patent
claim 24, is, like Lagrange reissue claim 32, also directed to a tinctorial composition
comprising an indoline and, like Lagrange reissue claim 32, it also further limits the
indoline to the hydrochloride or hydrobromide salt. Consistent therewith, Konrad argues
(KB 26), presumably for the purpose of establishing anticipation, that reissue claim 32
"is essentially the same as Lagrange's original claim 24."
However, Lagrange reissue claim 32 is not otherwise identical to Lagrange
patent claim 24. Lagrange reissue claim 32 differs from Lagrange patent claim 24 in
describing a particular medium. Lagrange reissue claim 32 describes a tinctorial
composition, including the indoline, comprising a medium containing a water/solvent
mixture where the solvent is selected from a group of thirteen possible compounds,
whereas Lagrange patent claim 24 is directed broadly to employing any medium. Given
the infinite number of possible medium materials encompassed by Lagrange patent
claim 24 the requisite identity does not exist and, accordingly, the Lagrange reissue
claim 32 composition is not anticipated by Lagrange patent claim 24.
Konrad has not met its burden of showing that Lagrange reissue claim 32 is the
same patentable invention as Lagrange patent claim 24 based on anticipation grounds.
However, with respect to the question of obviousness, the question is exactly the
same as the obviousness question that was raised relative Lagrange reissue claim 31:
whether it would have been obvious to one of ordinary skill in the art to particularly
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