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 20Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: November 3, 2007