Appeal No. 96-2905
Application No. 29/008,076
decision, pages 13-15. This per se rule approach is apparent
from the majority’s reliance on Rule 1.153(a), which,
according to the majority, prohibits the use of
"substantially" in a design claim. See the earlier decision,
pages 13-15. If the majority is taking the per se
indefiniteness approach to the term "substantially" as
indicated supra, appellant is correct in stating that the
majority's earlier decision renders thousands of unexpired
design patents invalid. If the majority is taking a contrary
position, i.e., a case-by-case approach to determining the
definiteness of "substantially" in a design application, I do
not believe that the results, i.e., invalidation of thousands
of unexpired design patents, will be any different, since
most, if not all, of the design patents already issued consist
essentially of drawings, which, according to the majority, are
not sufficient to guide the designer of ordinary skill to
understand the meaning of the expression "substantially".
Thus, in my view, the majority's decision constitutes improper
taking of the property interests of a significant number of
patentees who have relied on the guideline set forth in Ex
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