ANDREWS V. LONG.
The regretful delay in the decision of this case was caused bymy waiting for the promised brief of the defendant's counsel, which has not yet been furnished. . Let there be a decree for an injunctlon and an accounting as the fourth claim of the Martin patent.
and others v.
(Cirouit Court, D. Kansa". Novemuer.l880.)
PATENTS FOIt INVENTIONS.
The" driven-well" reissue, No. 4,372, for the inTention. of driving II tube into the earth to form a well, is not infringed by boring iDto the eanh with an auger and inserting a tube without driving or forcing.
Guthrie fl Brown, for complainants. Spilman It Brown, for respondents. MCCRARY, C. J. This cause has been a.rgued and submitted for final determination upon the merits. It is a bill in equity brought to recover damages for an alleged infringment of a patent, reissue No. 4,372, and for an injunction. No question is made by respondents on acC,Ount of want of novelty, prior discovery and use, or dedication to the public and abandonment, although these several defences are fet up in the answer. The single question presented for determination is whether the respondents have been guilty of an infringment of the patent of complainants. In order to decide this question it is necessary to give a construction to the patent, and to determine its purpose and scope. The patent is for a new process of constructing artesian wells, and the claim of the patentee is as follows:
"What I claim as my invention, and desire to secure by letters patent, is: The process of constructing wells by driving or forcing an instrument into the ground. until it is projected into the water, without removing the earth upward, as it is in boring, substantially as herein described,"
The claim, however, must be construed in connection with, and in the light of, the specifications which also accompany ·the patent, and fr.om which I quote as follows:
II My invention is particularly intended f(ilr the construction of artesian wells in places where no rock is to be penetrated. "The methods of constructing wells, previous to this invention, were what have been known as 'sinking' and' boring,' in both of which the hole or opening, constituting the well, was produced by taking away a portion of the earth or rock through which it was made. .. This invention consists in producing the well by driving or forcing down an instrument into the ground until it reaches the water, the hole or opening being thus made by a mere displacement of the earth, which is packed around the instrument, and not removed upwards from the hole, as it is in boring. 'rhe instrument to be employed in producing such a well, which, to distinguish it from' sunk' or ·bored' wells, may be termed a driven well, may be any that is capable of sustaining the blows or pressure necessary to drive it into the earth; but I prefer to employ a pointed rod, which, after having been driven or forced down until it reaches the water, I withdraw and replace by a tube, made air-tight throughout its length, except at or near its lower end, where I make openings or perforations for the admission of water, and through and from which the water may be drawn by any well-known or suitable form of pump. "In certain soils the use of a rod, preparatory to the insertion of a tube, is unnecessary, as the tube itself, through which the water is to be drawn, may be the instrument which produces the well, by the act of driving it into the ground to the requisite depth."
The evidence in this case clearly shows that the well constructed and operated by the respondents was made by boring a hole in the ground with an auger, somewhat larger than necessary, for the insertion of the pipe or tube, and by putting the tube down said hole and we are therefore to deto the water without driving or termine whether a well thus constructed is within the terms of the complainants' patent, so as to be an infringment thereof. It is not contended that Green, the patentee, was the original inventor of the idea of drawing water from the earth by the means of a pump, through a hollow pipe or tube having apertures at the lower end to admit the water. This process is known to have been in use, and in very common use, long before the granting of complainant's patent. It is very clear that the patentee has made no claim of novelty in any part of his process, except the driving or forcing of the pipe down through the earth to the water-bearing strata, without the necessity of digging or boring, or removing the earth upward. To use the language of the. inventor himself, he claims "the pro<'.ess of constructing wells by driving or forcing an intrument into the ground until it is projected into the water, without removing the
earth upward, as it is in boring." One of the necessary features of the invention, and perhaps the principal one, is the "feature of a tight connection between the tube and the earth, effected by the driving of the tube without removing the earth upward, upon the preservation of which the success of the process depends." Andrews v. Carman, 3 O. G. 1014. H the boring be resorted to merely for the purpose of facilitating the driving process,-that is to say, if the hole bored be smaller than the tube to be driven in, so that the tube is, after all, driven or forced into the earth,-so as to form a tight connection between the tube and the earth, the well thus constructed would, in my opinion, be within the terms of complainants' patent; but if a well is sunk by digging or boring, so that the excavation is larger than the tube to be inserted, and nothing is done but to put a tube down into the excavation without driving, and attach a pump, and in this way secure the water, I am clearly of the opinion that such a process is not within the terms of the patent. I concur in the construction given to this patent by Judge Blatchford, in the casa' just cited, as follows: "1 therefore understand this patent to be a patent for a process, and that the element of novelty in this process consists in the driving of a tube tightly into the earth witlwut removing the earth upward, to serve as a well-pit, and attaching thereto a pump, which process puts to practical use the new principle of forcing the water in the water-bearing strata of the earth from the earth into the well.pit, by the use of artificial power applied to create a vacuum in the manner described." The same view was evidently taken by Judge Nelson, and concurred in by Dillon, circuit judge, in the case of Andrew8 et al. v. Wright, United States circuit court, district of Minnesota, December Term, 1877. In that case the learned judge, in discussing the question of want of novelty, referring to certain processes in use before the Green pat. ent, said: "It is evident that the results noted therein are obtained by boring or excavating, and not by Green's process. And it is also clear that this process was not used in constructing the salt wells at Syra. cuse, New York." I am of the opinion that a well which is constructed by boring or excavating, and where a tube is not forced into the earth by any driving process whatever, is not an infringment of the complainant's patent.
The decree, therefore, be for the defendants, and it is so or· dered. The same order will be made in the case of William D. AnStingley and Orville Huntren, No. 2,766, in which drews et ale v. the facts are the same as in the case here considered.
SEARLS V. BOUTON
. Wwcui' Oourt, S. D. New Y qrk. June 22, 1882.)
PATENTS FOR INvENTIONB-REI88UE-ENLARGEMENT Oll' CLAIM.
Where the original patent was for a whip-socket having a bell-shaped top, and appears to cover no whip-sockets not having such a shaped top, a reissue for such whip-sockets generally, without any limitation to that form of top, is to that extent enlarged; within the principles of Miller v. Bridgeport Bra88 00. 21 O. G. 201, and Jame8 V. OamPbeZl, Id. 837.
In Equity. On Rehearing. J.P. Fitch, for orator. N. Davenport, for defendant. WHEELER,D. J. This cause has now been further heard as to the validity of the reissued patent involved therein, No.9, 297, dated July 13, 1aSO, the original of which was dated April 28, 1874, for an improvement in whip·sockets, as affected by the original patent now in evidence. The only question is whether the original will sustain the reissue, It is argued for the orator that the only form of this question railed by the answer is whether the reissue is for the same invention as that described in the original, and that no question of laches can properly be c.onsidered, because no delay il!l alleged. Without considering whether it is necessary to set that defence up separately in the in order to raise that question, it is sufficient now to notice that in this answer it is alleged that the original patent was not surrendered because it was invalid or inoperative by reason of claiming too much, and that in the reissue the claims have been broadened so as to cover more than the orator had the right to claim as new. This seems to sufficiently put in issue the propriety and lawfulness of the enlargement of the claims, and the scope of the patent at the time, and in the manner in which it was done. The original patent was for a whip-socket having a bell-shaped top, and a rubber disk for steadying the whip, fitting into an inner groove, near the top, in the