Patent Interference No. 103,548
encompassed by Lagrange patent claim 25. That specific question, and the parties
respective positions with respect to it, were addressed supra. We reach the same
conclusion for the reasons discussed supra; after careful review of the evidence and
arguments of both parties, we conclude that a prima facie case of obviousness has
been made out and not overcome by objective evidence of nonobviousness. Konrad
has met its burden of proof with respect to its motion and, accordingly, we GRANT
Konrad Preliminary Motion 7 with respect to designating reissue claim 33 as
corresponding to Count 2.
Lagrange Reissue Claim 34
Lagrange reissue claim 34 is directed to a method for dyeing keratinous fibers
with a tinctorial composition comprising an indoline, a suitable medium and a chemical
oxidizing system.
Reissue claim 34 provides for a "chemical oxidizing system consisting of:
[ingredients] (i) ...; (ii) ...; (iii) ... ." Lagrange (LOB 27) points out that a "proposed
Preliminary Amendment to Lagrange reissue claim 34 and a Supplemental Reissue
Declaration were filed during the interference." The Preliminary Amendment (paper no.
6, filed May 5, 1997 in USSN 08/676,491) changes the aforementioned phrase to
"chemical oxidizing system selected from the group consisting of: [ingredients] (i) ...; (ii)
...; and (iii) ... ." The effect of the amendment is to direct the claimed subject matter to
using a chemical oxidizing system consisting of only one of the three recited ingredients
instead of a combination of all three ingredients together. Even if we assume the
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