Patent Interference No. 103,548
Looking at Lagrange patent claim 25 as the presumed prior art, Lagrange patent
claim 25, is, like Lagrange reissue claim 33, also directed to a tinctorial composition
comprising an indoline and, like Lagrange reissue claim 33, it also further limits the
indoline to one of six specific compounds. Consistent therewith, Konrad argues (KB 26),
presumably for the purpose of establishing anticipation, that reissue claim 33 "is
essentially the same as Lagrange's original claim 25."
However, Lagrange reissue claim 33 is not otherwise identical to Lagrange
patent claim 25. Lagrange reissue claim 33 differs from Lagrange patent claim 25 in
describing a particular medium. Lagrange reissue claim 33 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 25 is directed broadly to employing any medium. Given
the infinite number of possible medium materials encompassed by Lagrange patent
claim 25 the requisite identity does not exist and, accordingly, the Lagrange reissue
claim 33 composition is not anticipated by Lagrange patent claim 25.
Konrad has not met its burden of showing that Lagrange reissue claim 33 is the
same patentable invention as Lagrange patent claim 25 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
select a water/solvent medium where the solvent is selected from a group of thirteen
possible compounds, including ethanol, from the vast number of mediums
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