Appeal No. 98-2069
Application No. 29/052,369
claim. This being the case, the appellant's insistence to
include the word "substantially" in their design claim in an
apparent attempt to circumvent the requirement of 37 CFR §
1.153(a) regarding the formal terms of a design claim only
serves to foster confusion as to what the claim is intended to
cover. This provides an additional reason for sustaining the
standing 35 U.S.C. § 112, second paragraph, rejection of the
appealed design claim.
We have, of course, considered all of the appellant's
arguments. However, we are not persuaded that the examiner
erred in rejecting the claim.
On page 3 of the brief and page 2 of the reply brief, the
appellant cites Dobson v. Hartford Carpet Co., 114 U.S. 439,
446 (1885) for the proposition that the use of the word
"substantially" in a design claim does not render the claim
indefinite under the second paragraph of 35 U.S.C. § 112.
Contrary to that which the appellant would apparently have us
believe, the Supreme Court in Dobson did not establish some
sort of per se rule to the effect that the use of
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