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BENEDEK v. COE

June 6, 1940

BENEDEK
v.
COE, Com'r of Patents



The opinion of the court was delivered by: PINE

This action is brought under Sec. 4915, R.S., 35 U.S.C.A. ยง 63.

The complaint prays that this Court authorize defendant to issue to plaintiff a patent with claims that have been rejected by the Patent Office tribunals.

 The rejected claims are sixteen* in number and are directed to structural features of a high pressure fluid pump shown and described in plaintiff's application for patent, S. No. 694,179, which was filed in the Patent Office on October 18, 1933. The claims have been grouped by the parties in the following order for consideration.

 Group I

 (Claims 22, 23 and 31)

 As to these claims the parties have stipulated that Claim 23 will stand or fall depending on the ruling as to Claim 22 *fn1" and that Claim 31 will stand if Claim 22 is held to be patentable.

 For the patentability of these claims plaintiff relies on the means recited for eliminating the destructive whipping of the drive shaft and pintle and barrel caused by insufficient support of the driving head. This is accomplished by "means independent of the pintle and barrel for rotatably supporting the head" (Claim 22). The independent supporting means employed consists in a bearing interposed between the driving head and an outer casing, which bearing is in addition to any other support which the drive shaft may have.

 The French patent No. 745,216 is principally relied on by the Patent Office for anticipating these claims. This patent discloses a pump of the type described and illustrated in plaintiff's application, but it does not have an independent support for the driving head and the end of the pintle adjacent to the driving head which can perform the function of eliminating destructive whipping of the drive shaft and pintle and barrel; nor does the French patent, or any other reference cited by the Patent Office, suggest such an independent support. Plaintiff's independent support undoubtedly performs a useful function and such a support or its equivalent is not disclosed or suggested by the prior structures. This is apart from the proposition, now conceded by plaintiff, that there is no patentability in the fact that in the French patent the drive shaft is inserted in a cavity in the pintle, whereas in this application the pintle is inserted in a cavity in the driving head.

 It is my opinion that Claim 22, and Claims 23 and 31 each patentably distinguish over the prior structures cited by the Patent Office and that these claims should be granted.

 Group II

 (Claims 28 and 29)

 The parties have stipulated that of the claims in this group Claim 29 will stand or fall with Claim 28. *fn2"


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