139 F.2d 473 (6th Cir. 1943), 9392, Dow Chemical Co. v. Halliburton Oil Well Cementing Co.
| Docket Number | 9392. |
| Date | 17 December 1943 |
| Citation | 139 F.2d 473,60 U.S.P.Q. 90 |
| Parties | DOW CHEMICAL CO. v. HALLIBURTON OIL WELL CEMENTING CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Page 474
Wilber Owen, of Toledo, Ohio (Calvin A. Campbell, of Midland, Mich., Wilber Owen, of Toledo, Ohio, Russell Wiles, of Chicago, Ill., and Donald L. Conner, of Midland, Mich., on the brief), for appellant.
Leonard S. Lyon, of Los Angeles, Cal., and Earl Babcock, of Duncan, Okl. (Frederick S. Lyon and Leonard S. Lyon, both of Los Angeles, Cal., and Earl Babcock, of Duncan, Okl., on the brief), for appellee.
Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.
ALLEN, Circuit Judge.
This appeal attacks a decree finding invalid for want of invention Grebe & Sanford patent, 1, 877, 504, of which appellant is assignee. The patent covers a method and process of 'treatment of deep wells.' By stipulation of the parties two other patents relating to the same subject, Grebe, 1, 916, 122, and Grebe & Stoesser, 1, 998, 756, were sustained, and the court found that the appellee infringed certain of the claims of each of them. The complaint was dismissed as to Chamberlain patent, 2, 024, 718, but appellant has not questioned this action here. A counterclaim filed under Gravell patent, 1, 678, 775, was dismissed, the patent being held invalid, and no appeal was taken.
The Grebe & Sanford patent is especially concerned with the treatment of deep oil wells in which the mineral-bearing stratum consists of limestone or other calcareous formation, such as dolomite. The specifications state that the object of the invention is to increase the output from deep wells and to counteract some preventable natural causes for the decline of yield of a well, such as arise from the lack of sufficient ground pressure to cause the well to flow or from the building up of deposits of wax and other foreign substances in the channels of the oil-bearing rock which obstruct and may even cut off the flow of oil to the well. Among other methods for opening up a clogged wellhole the specifications particularly discuss that disclosed in Frasch patent, 556, 669, for increasing the flow of an oil well in a limestone formation by treating it with acid, such as hydrochloric acid. The Grebe & Sanford specifications declare that 'The acid has the effect of attacking and dissolving the rock, thereby enlarging the cavity at the bottom of the well, or the channels and pores in the rock through which oil flows to the well, ' but state that in actual practice this method has never been generally adopted, due to the fact that the acid attacks and damages the metallic casing and the pump tubes.
The claim is then made that the patent presents an improved method of using the hydrochloric acid treatment, which consists of adding to the acid a small amount of a substance capable of inhibiting attack of the acid on metal surfaces with which it comes in contact. For the inhibiting agent the use of an arsenic compound of from one to five per cent, based on the weight of the solution, is recommended. Numerous other inhibitors are also suggested. The recommended strength of the aqueous hydrochloric acid solution is between about five per cent and about twenty per cent, preferably between ten and fifteen per cent.
Claims 1, 5, 7, 8, and 9 are in suit. Claim 8 is typical and reads as follows:
'8. The method for increasing the output of an oil well which comprises charging into the pump tube a quantity of a 5 to 20 per cent hydrochloric acid solution containing a relatively small amount of a corrosion inhibitor, expelling the acid from the tube into the bore of the well by applying pressure thereon, permitting the acid to act upon the rock formation surrounding the well cavity and withdrawing the spent acid.'
The District Court found that the appellant in 1932 was the first to treat the producing formation of a limestone well with inhibited hydrochloric acid charged into the well through the pump tube, and
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that the appellee inhibits the hydrochloric acid used in its business of treating wells by the presence in the acid of dissolved lead and copper. However, the District Court dismissed the bill upon the ground that in adding a corrosion inhibitor to hydrochloric acid for use in acidizing wells, Grebe & Sanford were merely making use of the well-known qualities of such corrosion inhibitors without obtaining any new or unexpected result, and without creating any new process of acidizing a limestone formation. The court found that the addition of the corrosion inhibitor, in view of the prior art, required no more than the ordinary skill of the calling and involved no patentable invention.
The appellee's acid in its initial state has no inhibitor added to it. It is transported to the wells in steel containers on the inside of which a number of lead sheets are brazed. A battery action is thereby set up and minute quantities of copper, lead and iron chlorides, are deposited on the inside of the steel container, forming a protective coating. An acid solution of about fifteen per cent concentration is used by the appellee, and when the acid is inserted in the tubing of the well, the copper, lead and iron chlorides therein act to reduce corrosion from forty to sixty per cent. Although no chemical action is present between the hydrochloric acid and the arsenic compounds which are used by appellant as inhibitors, as is the case in appellee's process, the District Court found, we think correctly, that appellee infringes if the patent is valid. There is no substantial difference between the results secured by the appellee and that secured by appellant, and the method used is essentially the same.
The patent in suit was involved in a case heard in the Circuit Court of Appeals for the Tenth Circuit, Dow Chemical Co. v. Williams Bros. Well Treating Corp., 81 F.2d 495. There the patent was held valid, and appellant relies largely upon that decision to support its contention that the decree must be reversed. The District Court found in the instant case that the method of acidizing disclosed in the Frasch patent, 556, 669 (1896), was successfully used on a commercial basis in the acidizing of wells near Lima, Ohio, in 1895; that inhibited hydrochloric acid was used by the Gypsy Oil Company in 1928 to remove calcareous...
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