Ex parte GENATOSSIO - Page 20




          Appeal No. 98-2069                                                          
          Application No. 29/052,369                                                  


                    In re Levy, 135 U.S.P.Q. 447 (C.C.P.A. 1962) ("The                
               single claim refers to the drawing and claims the ink                  
               cartridge 'substantially as shown.'").                                 
                    In re Rubinfield, 123 U.S.P.Q. 210, 214 (C.C.P.A.                 
               1959)("A single claim to 'the ornamental design for a                  
               floor waxer substantially as shown' would afford exactly               
               the same degree of protection to appellant in the instant              
               case as would the claims involved in this appeal [also                 
               including  'substantially'].  Id . 211.").                             
                    Super Prod. Corp. v. Metal France Aquariuza Co., 117              
               U.S.P.Q. 17, 20 (D.N.J. 1958) ("The claim of the patent                
               hereinabove described as 'I claim: The ornamental design               
               for an aquarium filter, substantially as shown.'").                    
                    R. Wallace & Sons Mfg. Co. v. Ellmore Silver Co., 85              
               U.S.P.Q. 479 (D. Conn. 1950) ("Its single claim is 'The                
               ornamental design for a spoon or other article of                      
               flatware, substantially as shown.'").                                  
                    Smith v. Dental Prod. Co., 60 U.S.P.Q. 260, 272 (7th              
               Cir. 1944), cert. denied, 322 U.S. 743 (1944) ("The                    
               patentee claims: 'The ornamental design for an ampule                  
               substantially as shown.'").                                            
                    Viehmann et al. v. D.F.H. Novelty Furniture Co., 41               
               U.S.P.Q. 468, 469 (E.D.N.Y. 1939)  ("'The ornamental                   
               design for a kitchen table or the like, substantially as               
               shown  and described.'").                                              

               We have reviewed the eight cases cited above by the                    
          appellant but do not find any to be controlling for the                     
          following reasons.  The issue decided in Geiger was whether                 
          the appellants in their design application were claiming the                
          "same invention" claimed in their design patent.  The Court in              
          Geiger did not decide the issue of whether the use of                       
          "substantially" in a design claim renders the claim indefinite              

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