Dillon Co. v. Continental Supply Co.

• Decision Date: 27 July 1938
• Docket Number: No. 1577.,1577.
• Citation: 98 F.2d 581
• Parties: DILLON CO. v. CONTINENTAL SUPPLY CO.
• Court: U.S. Court of Appeals — Tenth Circuit

98 F.2d 581 (1938)

DILLON CO. v. CONTINENTAL SUPPLY CO.

No. 1577.

Circuit Court of Appeals, Tenth Circuit.

July 27, 1938.

Edward P. Marshall, of Tulsa, Okl. (Robert E. Barry, of Washington, D. C., and J. J. D. Cobb, of Tulsa, Okl., on the brief), for appellant.

A. J. Hudson, of Cleveland, Ohio (Yancey & Spillers, of Tulsa, Okl., and Kwis, Hudson & Kent and S. J. Boughton, all of Cleveland, Ohio, on the brief), for appellee.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

LEWIS, Circuit Judge.

On August 25, 1927, S. V. Dillon of Tulsa, Oklahoma, filed application for a patent of a device which he represented as new and useful improvements in pipe joints, and said in his specification that it would be constructed and arranged in such manner that the pipe gripped thereby will be positively prevented from slipping in either direction; that it provided a method of coupling pipes in either a rigid or flexible joint as different conditions may require. He said his invention was illustrated in accompanying drawings. On January 20, 1931, patent No. 1,789,379 was issued to him containing twelve claims. Dillon transferred his patent by assignment to appellant, and it later sued appellee for infringement of claims 11 and 12. Dillon organized appellant company and is its president.

The answer alleged that the patent is void in view of the state of the art as known at the time of and long prior to Dillon's alleged discovery; that it did not involve invention, but involved nothing more than the exercise of mere mechanical skill. It also denied infringement of either claim.

Appellant dismissed as to claim number 12.

The District Court found there was no infringement of claim 11 and dismissed the bill. In bringing the case up Equity Rule 70½, 28 U.S.C.A. following section 723, was not complied with in any respect.

Claim number 11 reads thus:

"The combination (1) with a plurality of pipes arranged end to end and having their extremities slightly spaced apart, (2) of a resilient sealing ring surrounding the pipe ends and having an internal groove communicating with the space between the pipe ends, said ring having inwardly extending sealing lips arranged at opposite sides of the groove and snugly engaging the peripheries of the pipes, (3) a housing mounted on the pipe ends and having a groove in which the sealing ring is seated, (4) and jaws movably mounted in the housing and having teeth biting into the peripheries of the pipes."

The history of the art prior to Dillon clearly shows that the spacing apart of the ends of pipes is for the purpose of avoiding the effect of expansion and contraction caused by changes of temperature. Also it was well known before Dillon that pipe lines sometimes creep and that creepage may pull a pipe out of a joint, it being far more extensive in movement than expansion and contraction. In the use of plain end pipes with their ends spaced apart even slightly it was apparent that there would be leakage at each joint, which would have to be prevented, as well as means of binding them firmly together as spaced, and these were the main objects of such a device, the whole being generally called a "pipe coupling". The first patent in that field disclosed in this record is a British patent issued to Kittoe and Brotherhood in July, 1870, in which the specification said:

"For the joints of pipes we employ the following construction: — We bring the two ends of the pipes to be joined into juxtaposition allowing a little clearance between them. We surround these ends by a cyclinder of caoutchouc or other elastic material made with a cavity within its thickness, and an annular opening from this cavity on the inside, so that it is like a cyclindrical tube with its two ends folded within itself. We place this elastic cyclinder on the ends of the pipes so that its annular opening faces the clearance between the ends of the pipes, and we cover the elastic cyclinder by a metallic casing securing it externally and at each end. When the pipe so joined is charged with fluid under pressure this pressure acting within the cavity of the elastic cyclinder tightens it against the pipes and the casing, while the casing prevents it from being too much expanded or rent."

In Bodart, No. 210,906, for pipe joint and coupling, issued December 17, 1878, it is stated in the specification:

"The object of this invention is to furnish a strong and close union of pipes for gas and water supply, and for other purposes, without the use of sockets or flanges on the pipes, and that will allow for the expansion and contraction thereof. * * *

"A coupling formed in this way enables straight pipes without sockets to be used, and makes a perfect union between the pipes, as strong and tight as may be desired, but sufficiently flexible to yield to the expansion and contraction of the pipes."

Other patents in the record in line with what has been quoted from those above named are: Duncan, No. 591,828, issued October 19, 1897; Register, No. 1,571,343, issued February 20, 1925; and Tribe, No. 1,541,601, issued June 9, 1925.

The ring "with a cavity within its thickness" and an opening from this cavity on its inside encircling the pipes at their ends and held in position by the housing, is called a sealing ring or gasket. Appellant calls for a sealing ring in its patent, but it functions in a very different way and is actuated by different means from that in appellee's combination. Appellant presses the lips of its gasket tightly against the peripheries of the pipes adjacent their ends with its housing, as shown in patent drawing Fig. 6, which encircles the pipes and gasket, and in Fig 1 Dillon presses the gasket on one pipe by a clamp in the end of the housing, but on the other pipe by the housing. There is no connection, physical or operative, between the clamp and housing in Fig. 1 or between the clamps and housing in Fig. 6, whereas appellee uses pressure from the pipe content to press the lips of its gasket against the peripheries of the pipes. The first method is mechanical, the second automatic.

The third element in the combination, a housing over the pipe ends to hold them together and the gasket in place is the real coupling means. Such means appear in prior patents, some of which expired prior to Dillon. In some of the prior patents, when plain end pipes spaced apart were used, the housing and gasket around the pipe ends constituted the whole structure, called a pipe coupling, — and were an invented device or means to prevent leakage as already described.

We come to the fourth element of the combination, "jaws movably mounted in the housing and having teeth biting into the peripheries of the pipes". Relative thereto appellant's brief states:

"The patent discloses inventions relating to two types of coupling principle: (a) one device for effecting a rigid joint between the pipes, and (b) another device for effecting a flexible joint. It is to the latter principle and invention that our inquiry is addressed."

It is further said in the brief the coupling thus improved is applicable to plain end pipe, that it would allow for relative longitudinal movement, such as for expansion and contraction of the pipes themselves, or creeping and otherwise for flexibility of longitudinal movement; that it was to provide a means of keeping the ends of plain end pipes from being withdrawn from the sealing ring or housing as a consequence of movement of the pipe ends away from each other, and this was to be accomplished by placing movable toothed jaws in recesses in either end of the housing to bite into the peripheries of the pipes; and that these functions of the invention as set forth in the claims may be readily recognized in Fig. 6 of the patent drawings. The brief admits that prior to Dillon there were couplings for plain end pipes embodying sealing rings or gaskets which sealed the joints between pipe ends against outleakage of pipe content, such as found in patents to Stuttle, Register, Kittoe and in the Dresser coupling, but none of these devices had any means whatever for preventing the pipe ends from being slipped, pulled or otherwise disengaged from the coupling proper, or from the gasket within the coupling, but it is admitted that Victaulic coupling (patent issued to Tribe preceding Dillon) provided for such pipe movement and prevented disengagement from gasket or coupling.

Figs. 1 and 6 of the Dillon patent drawings are reproduced, viz.:

The pipes are marked x and spaced apart. The gasket 17 lies around the pipes at their ends, V-shaped over the pipe opening, its apex fitting into a groove in the housing 2 and 3, and when the two parts of the housing are clamped down in Fig. 6 it compresses the gasket tightly on the ends of both pipes, whereas in Fig. 1 it compresses the gasket only on the right hand pipe, and the teeth in its jaws bite only into that pipe. When the clamps in Fig. 6, which also surround the pipes, are clamped down the teeth in those clamps bite into the pipes. As to Fig. 1 the specification says:

"The gasket 17 may be integral or in sections, composed of rubber, soft metal or any other suitable material and is of sufficient thickness to engage the pipe slightly in advance of the teeth 6 and 12, whereby when said teeth are drawn together, said gasket will be pressed against the pipe to such an extent that a leak would be impossible. * * *

"In Figure 6 I have shown another type of flexible joint which may be used as effectively as the one heretofore referred to. With this construction, instead of providing the housing with teeth or jaw members, I employ a gripping clamp 8 at each end thereof, said clamp being slideably mounted within recesses 7 in said housing. In this structure the gasket 17 is secured entirely by the housing 1."

It was the conception of Dillon that his two clamps, one in each end of the housing as shown in Fig. 6, each of which had two jaws surrounding a pipe, each of those...