Appeal No. 96-2905
Application No. 29/008,076
in exactly the same form as when adopted on December 22, 1959,
and in force when (1) the PTO issued the at least 18,537
design patents with "substantially" in the claim since 1971,
and (2) two court decisions were decided. The first point the
appellant is apparently attempting to make is that the
circumstance that numerous design patents issued with the word
"substantially" in the claims since the inception of the rule
establishes that the appellant's use of the word
"substantially" is consistent with the settled practice of the
PTO. The second point the appellant is apparently seeking to
make is that the two court cases establish that the
appellant's use of the word "substantially" does not render
the claim indefinite under the second paragraph of 35 U.S.C. §
112.
As pointed out on pages 20-22 of our decision, we
recognize that design patents have been issued with the word
"substantially" appearing in the claim. However, the
appellant has not cited any authority which holds that the
issuance of a patent has any significant precedential value.
In evaluating compliance with 35 U.S.C. §§ 112 and 171, each
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