Appeal No. 96-2905
Application No. 29/008,076
parte Owen referred to in the earlier dissenting opinion,
without providing any constitutionally required procedural
safeguards.
I also observe that the determination of indefiniteness
is a question of law which can be raised sua sponte by courts.
However, as indicated at pages 16 and 17 of the earlier
decision, all of the appellate and district courts confronted
with the expression "substantially" in the context of design
patent claims have not held that expression to be indefinite.
In my view, implicit in their decisions is that the expression
"substantially" recited in design claims does not violate the
second paragraph of 35 U.S.C. § 112.
Further, I take exception to the majority's reliance on
Alappat to justify the procedural due process associated with
the expansion of the original panel. I do not believe that
Alappat is relevant to the due process issue raised by
appellant for the reasons well articulated by Administrative
Patent Judge John D. Smith in his concurring opinion.
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