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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