Patent Interference No. 103,548
there would have been a reasonable expectation that an iodide/peroxide oxidizing
system would be equally applicable and effective with indolines in the oxidative dyeing
of keratinous fibers. Accordingly, for the same reasons we discussed earlier, we hold
that Lagrange reissue claim 34 would have been prima facie obvious to one with
ordinary skill in this art over Konrad claims 13 and 14.
Lagrange relies on the same arguments (LOB 4548) and objective evidence of
nonobviousness (i.e., Part II of Cotteret Declaration II, paper no. 35; see LOB 47) to
rebut this prima facie case of obviousness for Lagrange reissue claim 34 as were made
against the prima facie case of obviousness of Lagrange patent and reissue claims 22-
23. For the same reasons we found them unpersuasive as to claim 22-23, we find them
similarly unpersuasive in overcoming the prima facie case of obviousness for Lagrange
reissue claim 34.
We hold 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
and, accordingly, we GRANT Konrad Preliminary Motion 7 with respect to designating
claim 34 as corresponding to Count 3.
Accordingly, Lagrange reissue claims 30-33 and Lagrange reissue claim 34 are
designated to correspond to Counts 2 and 3, respectively. Consequently, given our
48 "The oxidative dyeing of hair using hydrogen peroxide with indolines of Konrad, and the oxidizing
agents disclosed in the prior art, do not make the oxidizing agents of Lagrange obvious. Konrad claims
the oxidative dyeing of hair with indolines with the aid of, inter alia, hydrogen peroxide. The prior art
relating to an iodide/hydrogen peroxide oxidizing system has been discussed above with respect to
Lagrange claims 22 and 23." LOB 45.
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