These claims relate to preloaded bearings between the cylinder barrel and the pintle. Claim 43 is identical with Claim 1 of the Ernst patent, No. 2,041,172. The Ernst patent was issued on an application which was filed subsequent to the filing date of plaintiff's application and for that reason is not prior art against plaintiff. This claim was copied for the purpose of provoking an interference between Ernst and plaintiff. The Patent Office refused to declare an interference.
The position of the Patent Office is that plaintiff has not disclosed in his specifications "preloaded" bearings in the sense that the term "preloaded" is used in the Ernst patent.
Ernst states that an object of his invention is to provide a pump or motor "wherein the rotating parts are supported on preloaded ball bearings which serve to place a preliminary load thereon in order to take out most of the elastic deformation thereof" and further on he states that he has provided "preloaded ball bearings which are slightly larger in diameter than the space between their races, the balls being forced into this space in such a manner that the clearance between the races and the balls is substantially zero."
He also illustrates bearings capable of being preloaded in accordance with his construction.
In contrast plaintiff in his original specification states that certain bearings are "preloaded or adjusted" indicating that he was using the terms "preloaded" and "adjusted" synonymously. He says this is accomplished by a set collar or nut shown in the drawings of his application. It does not appear, however, that the adjusting nut could be satisfactorily employed to "preload" the bearings in the manner intended in the Ernst patent.
Plaintiff testified that in his construction the roller bearing was preloaded when pressed into the barrel, but this method is not described in his specification and in fact is contrary to his original specification as above pointed out. In plaintiff's disclosure the bearings are not adapted for preloading in the sense that the diametral clearance of the bearings may be reduced substantially to zero.
I am therefore of the opinion that Claim 43, interpreted in the light of the Ernst patent from which it was taken, does not read on plaintiff's original disclosure, the application disclosing an adjustable ball bearing and not a preloaded ball bearing as defined by Ernst. That this claim shall be interpreted in the light of the Ernst patent would appear to be settled by Podlesak v. McInnerney, 26 App.D.C. 399; Engel v. Sinclair et al., 34 App.D.C. 212; Seymour v. Molyneaux, 49 App.D.C. 216, 263 F. 468; White v. Cottrell, 50 App.D.C. 269, 270 F. 877; Chamberlin v. Kadow, 54 App.D.C. 294, 297 F. 873; McIntyre v. Dodge, 58 App.D.C. 273, 29 F.2d 861.
If the term "preloaded" appearing in Claim 43 is interpreted to mean an adjustment then it is unpatentable by reason of the Prather patent, No. 1,299,777, which shows ball bearings capable of the same adjustment as with plaintiff's structure.
I am therefore of the opinion that Claims 40, 41 and 43 are not patentable.
(Claims 35 to 39, incl.)
The parties have agreed that Claims 36, 37, 38 and 39 will stand or fall with Claim 35.
The claimed invention in this group relates to the requirement that the total diametral clearance between the elements of each bearing assembly be less than the clearance between the barrel and pintle.
There is no patentable difference between this and the Prather patent, supra. Prather shows ball bearing assemblies which are capable of adjustment in the same manner as claimed by plaintiff. Although Prather does not mention this adjustment, he provides the element for adjustment and the amount of adjustment is a matter of choice.
These claims are fully anticipated by the Prather patent.
Counsel will prepare findings of fact and conclusions of law and judgment in accordance with this opinion.