Appeal No. 98-2069
Application No. 29/052,369
patent was valid over three prior patents and whether the
patent was infringed. The Court in Super Products 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 Wallace
were whether the appellants' design patent was valid over the
prior art and whether the patent was infringed. The Court in
Wallace 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 design
issue decided in Smith was that the appellants' design patent
was invalid for lack of invention. The Court in Smith 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 Viehmann
was whether the appellants' design patent was valid over the
prior art. The Court in Viehmann 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. Thus, the eight cases cited by the appellant are not
controlling and do not support the appellant's position
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