Hall v. Keller
| Decision Date | 02 February 1949 |
| Docket Number | Civ. 2315. |
| Citation | 80 F. Supp. 763 |
| Parties | HALL v. KELLER et al. |
| Court | U.S. District Court — Western District of Louisiana |
Thomas E. Scofield and Claude W. Lowe, both of Kansas City, Mo., and Moss & Graham, of Lake Charles, La., for plaintiff.
Reginald E. Caughey, of Los Angeles, Cal., and Plauche & Stockwell, of Lake Charles, La., for defendants.
The plaintiff bought the allegedly infringing device from J. Frank Keller, a resident of this District, at his place of business in this District; so follows our jurisdiction. Immediately, the manufacturer, the B. & W., Inc., by stipulation, became the real defendant and J. Frank Keller, the local dealer, went out of the suit. The device is a cement casing centralizer, used in the boring of oil wells.1
At the trial, the plaintiff placed objectively his device (Exhibit "E") and the infringing device (Exhibit "F") in the record.
To help in knowing what is the subject of this case and in the understanding of its issues, we place here the inventor's sketch accompanying his patent.
The plaintiff has taken three (3) of the sixteen (16) claims of his device, patent No. 2,220,237, dated November 5, 1940, and has pitched this suit thereunder, claiming infringement, and praying for injunction to follow the proof, coupled with an accounting. The claims are as follows:
The principal functions and advantages of the device of the patent are set forth in plaintiff's advertising literature:
There have been a number of devices, developed in the course of the past five (5) or six (6) years, similar in general principle to the one device sought to be protected here, as shown by the certified copy of the application of Mr. Hall in the Patent Office; however, the one new added feature in the device of plaintiff is that the spiral bowed springs (common to all previously) now have a tangential or axial twist in the blades, essential to provide leading and trailing edges. These will be seen in the figure two (Fig. 2.) of the printed sketch, designated No. 20 and No. 21, respectively.
We said during the trial, after Mr. Hall had explained the details of manufacture of his device: "This is not a haphazard operation, but a meticulously arranged setting, bending, and everything."
Our conclusion from the evidence of both sides as to the prior art is that previously to the patent in suit all such devices "conformed to the bore of the hole." A conformative device is a device the bowed springs of which touch the bore of the hole without a leading or cutting edge.
The defendant, with much time and care, actually reproduced a device, under the prior art, of the conformity type and it is a physical exhibit in the case (Exhibit D-21). This device, according to the prior art, was made to conform, bow spring by bow spring, to a mandrel and then, putting the mandrel aside, the device was placed together as a whole. The fact is that, from the draftsman's figures accompanying the various devices under the prior art and from the description and the claims in the accompanying applications, no leading (cutting) and trailing (troweling) edges (Nos. 20 and 21, Fig. 2 of the patent diagram), as in figure two of the patent in suit, are drawn or described. Each bow spring at its narrow part fits perfectly, at each edge against the circumference of the circle drawn to fit around the device (Exhibit D-21) at any point of its length. In Exhibits "E" and "F" the trailing and troweling edge does not touch the circumference of the circle so drawn.
The defendant has established that, from the various itemized descriptions of the patent in suit, the blades of the device should have a cutting edge in their whole length; granting that to be true, yet the claims, as previously quoted, permit by their language a cutting edge along the whole length of the bowed spring or merely to the transverse middle line of the device; then for the other half the cutting edge is permitted to be on the other side of the same bowed spring.
The offending device and the device of the patent in suit show the same axial twist in their springs. This was proved by witnesses on both sides by the placing of a pitched gauge or ring over the device.
This axial twist of the bowed springs has been proved to be of great practical value. It makes all the difference in the world in the sale of the device. The purely cylindrical devices of the prior art have no chance in competition against the devices which have the bowed springs with the cutting and troweling edges.
Though the oil pipe with this device attached to it is not turned one way or the other when it is dropped perpendicularly, because of the fact that these bowed springs are not parallel to the pipe, the cutting edges scrape the well bore. This tends to bring about (1) a straight alignment of the pipe, and (2) leaves the pipe the same distance all around from the walls of the well bore, thus permitting the same thickness of cement to be applied around the pipe. This departure is novel, very ingenious, very helpful, and practical in oil explorations. We think the improvement is patentable. National Machine Works, Inc., et al. v. Harris et al., D.C., 73 F.Supp. 568.
The defendant has made a very strong and thorough defense.
It has claimed that the Shaffer Tool Works, as far back as 1930 and 1931, manufactured and sold spiral centralizers which embodied the construction of the accused structure. It is frankly stated that these centralizers did not have a leading edge along the entire blade. It was shown that one named Jackson had conceived, by the fall of 1930, a centralizer and that the Shaffer Tool Works, by the use of their draftsmen and their machinists, manufactured the spiral centralizer conceived by Jackson. In fact, it was shown that one was actually sold. The evidence develops a device with bowed springs that absolutely conform to a circle and, therefore, had no cutting and troweling edges.
Depositions from many witnesses, draftsmen, blacksmiths, mechanics, etc. who worked upon and brought about this device, are in the record. The manufacture of this former device is done by thorough flattening of the bowed springs over a perfectly cylindrical mandrel, leaving no biting edges to the bowed springs. The patent at issue is a material departure from this.
Defendant says all of this evidence is "solely to prevent the plaintiff from obtaining a scope for the claims which would include the accused device."
We cannot follow counsel for the defendants in his position that the witnesses Thomas and Nelson said either directly or indirectly that there was a leading edge on the Shaffer Tool Works' spiral centralizer. Our view is that clearly and definitely they stated that no additional twist of the bowed springs was made axially after the bowed spring blades had been tapped tight and made to conform to the perfectly cylindrical mandrel. From the evidence, as a whole, it is clear that a leading and trailing edge on these bowed springs never entered the mind of any one concerned with or interested in this Shaffer spiral centralizer.
As an additional defense, exemplified by Exhibit D-21, a spiral centralizer was actually made in California by Mr. Wright, one of the owners of B. & W., Inc., in imitation and in duplication of the Shaffer device. Mr. Wright, a man of mechanical experience and with substantial academic training, explained the construction of Exhibit D-21, with a mandrel and other tools for the purpose.
The device placed of record, after Mr. Wright explained its construction in open court and designated it as Exhibit D-21, does not show leading edges as such. A leading edge to the bowed spring is inferred in this Exhibit D-21 when the bowed spring or blade is held at one end tight to the upper collar and at the lower end pressed over and made to fit tightly on the lower collar. This is merely a casual inference. An examination of defendants' Exhibit D-21 does not show a resultant axial twist caused by a spiral bending of the bowed...
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