Patent Interference No. 103,548
amendment is proper,47 for the reasons to follow, Konrad meets its burden of showing
that Langrange reissue claim 34 is the same patentable invention as Konrad claims 13
and 14.
To prevail on its motion to designate Lagrange reissue claim 34 as
corresponding to Count 3, Konrad must establish that Lagrange reissue claim 34 is the
same patentable invention as any other claim whose designation as corresponding to
the count it does not dispute. In that regard, Konrad seeks to establish that Lagrange
reissue claim 34 is the same patentable invention as Lagrange patent claim 9 or Konrad
claims 13 and 14, whose designation as corresponding to the count it does not dispute
(see KB 30).
Konrad does not appear to assert that Lagrange reissue claim 34 is anticipated
by Lagrange patent claim 9 or Konrad claims 13 and 14.
Focusing on Konrad claims 13 and 14 as the presumed prior art, they are, like
Lagrange reissue claim 34, directed to a method for dyeing keratinous fibers with a
tinctorial composition comprising an indoline and a chemical oxidizing system. Lagrange
reissue claim 34 differs from Konrad claims 13 and 14 in describing a chemical oxidizing
system consisting of, for example, the combination of hydrogen peroxide and iodide
ions. Konrad claims 13 and 14 describe a chemical oxidizing system consisting of, for
example, hydrogen peroxide only. There is also the matter of Konrad claims 13 and 14
47 The Preliminary Amendment has been entered into the reissue application but the amended claim has
not been examined by the Primary Examiner. We note that, in making its case, Konrad addresses
Lagrange reissue claim 34 in its amended form: "Lagrange reissue claim 34 excludes some of these
groups and only requires that one of the groups must be present." (KRB 36).
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