Appeal No. 98-2069
Application No. 29/052,369
term "substantially" as used in the claim under appeal that
would enable the designer of ordinary skill in the art to
ascertain what is meant by "substantially." There is little
evidence of record that the term "substantially" in a design
claim is a well accepted term having a meaning that is well
known to the designer of ordinary skill. The mere fact that
some design patents have included the term "substantially" in
the claim is of little value for the reasons expressed infra.
We believe that the designer of ordinary skill who
designs audio signal processing units would be unable to
determine to what extent a particular ornamental design for an
audio signal processing unit may depart from that which is
disclosed by the appellant and yet be regarded as
"substantially as shown and described." Absent such
guidelines, we are of the opinion that the designer of
ordinary skill would not be able to determine the metes and
bounds of the claimed invention with the precision required by
the second paragraph of 35 U.S.C. § 112. See In re Hammack,
supra.
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