¶1(concurring).
¶2I want to mention certain factors in this case which influence me to agree with the conclusion reached in Judge SMITH’S opinion.
¶3Not only do the claims on appeal specify a vortex-type fuel pump as part of the claimed pumping means, but they call for a specific type of vortex pump described in the specification and containing what claim 16 refers to as “second means for applying the energy of said vortex currents to assist in driving said impeller.”
¶4The record gives us no information about the place in the art of the kind of vortex pump specified in the claim. Apparently it is the “high efficiency vortex pump (such as that disclosed in my co-pending parent application)” to which the specification refers, the present application being stated to be a continuation in part of application serial No. 254,022, filed October 31, 1951. One might guess that applicant has invented a new vortex pump containing the “second means” of claim 16, which is described in the application before us as a turbine rotor 16 which is actuated by energy from the vortex currents (those moving at right angles to the plane of rotation of the impeller of the pump). This rotor is mounted on the impeller shaft and any energy it absorbs thus assists in driving the impeller. This kind of vortex pump appears to be disclosed in the parent application but whether it is claimed therein we have no way of knowing. In any case, it is claimed here in combination with a variable speed drive and means for varying the speed of the drive in accordance with variations in the pump discharge pressure. The references do not show the combination. Though the *763Hobbs et al. patent shows a kind of pump, the air compressor of a supercharger, in combination with a fluid coupling and pressure responsive control means, this reference does not suggest the applicability of the control to a vortex pump of any kind.
¶5No reference shows a vortex pump, nor is appellant’s parent application before us or in any way relied on in the rejection. It may well be that appellant’s high efficiency vortex pump in combination with the claimed control system produces unobvious results in an unobvious way.
¶6In simplifying appellant’s combination to the point where one of the elements is merely a pump, the examiner was setting up a nonexistent situation for the sake of argument. Appellant insisted that his claim called not for a single element, a pump, but set forth four different elements in the combination, called F, G, g, and I. The board said:
“We have considered the examiner’s position in this respect and agree with him that elements F, G, g, and I of appellant’s combination are in reality merely the pump means of the references as far as the combination claimed is concerned. (My emphasis.)”
¶7This was error since it wrongly assumes that the pump element of the claims read on any pump, which is not the case. Claim 16 specifies
… a vortex-type fuel pump … having a rotary impeller with flat, straight, radial blades, so constructed and arranged as to generate in the pumped liquid fuel vortex currents which move at right angles to the plane of rotation of said impeller … second means for applying the energy of said vortex currents to assist in driving said impeller.
¶8All of this limits the pump element in the claim. I agree with the board that elements F, G, g, and I are “merely the pump means,” but they are appellant’s pump means and not at all the pump means described in the references. So it comes down to the question of the pat-entability of the combination of appellant’s pump, as defined in the claims, with the other elements in the claimed combination. I think the references relied on fall far short of suggesting it and therefore that it is patentable.