Appeal No. 98-2069
Application No. 29/052,369
under the second paragraph of 35 U.S.C. § 112. The issues 8
decided in Fee were whether the appellants' design claim was
properly rejected under double patenting and that the
application lacks a sufficient disclosure. The Court in Fee
did not decide the issue of whether the use of "substantially"
in a design claim renders the claim indefinite under the
second paragraph of 35 U.S.C. § 112. The issue decided in
Levy was whether the appellant's design claim was obvious over
the prior art. The Court in Levy did not decide the issue of
whether the use of "substantially" in a design claim renders
the claim indefinite under the second paragraph of
35 U.S.C. § 112. The issues decided in Rubinfield were
whether the appellant could present multiple embodiments and
multiple claims in a design application. The Court in
Rubinfield did not decide the issue of whether the use of
"substantially" in a design claim renders the claim indefinite
under the second paragraph of 35 U.S.C. § 112. The issues
decided in Super Products were whether the appellants' design
8We note that the Court's dicta that the claim on appeal
is of the form prescribed in design patent applications is not
controlling and is inaccurate since Rule 153(a) did not permit
the use of the word "substantially" in a design claim.
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