Independent Oil Well Cementing Co. v. Halliburton, 468.

• Decision Date: 11 January 1932
• Docket Number: No. 468.,468.
• Citation: 54 F.2d 900
• Parties: INDEPENDENT OIL WELL CEMENTING CO. v. HALLIBURTON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

54 F.2d 900 (1932)

INDEPENDENT OIL WELL CEMENTING CO. v. HALLIBURTON et al.^*

No. 468.

Circuit Court of Appeals, Tenth Circuit.

January 11, 1932.

Arthur C. Brown, of Kansas City, Mo. (C. E. Hall and Hall & Thompson, all of Oklahoma City, Okl., on the brief), for appellant.

Leonard S. Lyon, of Los Angeles, Cal. (Henry S. Richmond, of Los Angeles, Cal., Hubert Ambrister, of Oklahoma City, Okl., and Ben F. Saye, of Duncan, Okl., on the brief), for appellees.

Before COTTERAL and PHILLIPS, Circuit Judges, and JOHNSON, District Judge.

PHILLIPS, Circuit Judge.

Erle P. Halliburton and Halliburton Oil Well Cementing Company brought this suit against the Independent Oil Well Cementing Company for infringement of patents 1,486,883 and 1,500,385. Halliburton is the patentee and owner of the patents in suit, and the Halliburton Oil Well Cementing Company is the exclusive licensee thereunder for the Mid-Continent Oil Field, which includes Oklahoma. The trial court held the patents valid and infringed, and entered a decree accordingly.

Patent 1,486,883 was applied for June 20, 1922, and was issued March 18, 1924. It is for a method of hydrating cement and other comminuted materials.

Patent 1,500,385 was applied for January 4, 1924, and was issued July 8, 1924. It is for a method of hydrating cement and other comminuted materials and conveying such mixture to the point of use, with the speed of the mixing process and the speed of the conveying operation so synchronized that no substantial setting of the mixture takes place before it is deposited at the place it is intended to remain, and for devices to carry out the methods of both patents.

Hydrating cement consists in enveloping the particles of cement with water to bring about the chemical action which produces setting or hardening of the cement.

While the inventions of the patents in suit are not so limited, they were primarily intended to provide a new method of mixing and conveying cement and a new means for employing the same in the cementing of oil wells. The cementing of an oil well is usually accomplished in the following manner. A string of pipe is lowered into the well so that it extends from the top of the well to a point shortly off the bottom of the hole. Neat cement, which is a mixture of water and Portland cement, is pumped down this pipe and forced through the bottom up around the outside of the pipe and there allowed to set. After it has set the hole is drilled through the cement. The purpose of the operation is to shut off water that flows in from the adjacent strata and down the outside of the pipe.

Prior to the Halliburton inventions, it was standard practice to mix such cement by hand. Mechanical mixers were tried but were not satisfactory, because they did not assure a proper proportioning of the cement and water.

The method of hydrating cement under the patents in suit contemplates the projection of a high velocity stream of water into a cement mixing chamber, the depositing of the dry cement into a hopper adjacent to such high velocity stream, the creation of a region of reduced pressure or suction by means of such high velocity stream, the drawing of the particles of dry cement into the stream by reason of such suction, the entraining of the cement in the stream, the mixing of the cement and water by the impact of the particles of water of the high velocity stream against the particles of dry cement, and the carrying of the mixture through the outlet of the mixing chamber by the force of such stream.

Figure II of the patent drawings illustrates an apparatus suitable for carrying out such method, and is as follows:

The apparatus is provided with a hopper 9 into which the cement is fed from the supply sacks. When in operation, the hopper is kept approximately full. Below the hopper is a mixing chamber 5. 19 is a fluid conducting pipe through which water is forced under high pressure. The water passes through a nozzle 16 and, by reason of the restriction of the nozzle and the pressure of the water, a high velocity stream of water is projected from such nozzle into the mixing chamber. This high velocity stream produces a zone of reduced pressure and causes what is commonly called suction. This suction draws the dry cement into the high velocity stream and the force of the impact on the cement breaks up the column of cement into particles, forces away the envelope of air about the particles of cement, and covers such particles with a film of moisture. The outlet of the mixing chamber 21 is smaller than the mixing chamber. This slightly retards the passing of water and cement through the mixing chamber and insures complete hydration of the cement particles. The consistency of the mixture may be varied by changing the size of the nozzle. The quantity of the mixture produced may be regulated by increasing or decreasing the velocity of the stream of water. If the velocity of the stream is increased or decreased, the amount of dry cement drawn in will increase or decrease in fixed proportion and the consistency of the mixture will remain constant. The cement and water are proportioned and mixed by means of suction and force inherent in a high velocity stream of water.

When he ascertained that increasing or decreasing the velocity of the stream would vary the quantity of the mixture, but that the proportions of cement and water would remain constant, Halliburton empirically discovered a new principle which underlies his inventions.

Patent 1,500,385 was filed as a continuation of, and during the time the application for patent 1,486,883 was pending. The patent office examiner ruled that the mixing art was classified in Division 25, and the conveying art in Division 4 of the patent office, and that only claims referring to mixing per se could be retained in the first patent. Thereupon the claims now appearing in the second patent were canceled from the application for the first patent, but with notice that they were not abandoned but reserved for the second application. The claims of the first and second patents are not co-extensive. Such being the facts it is clear that the first patent is not an anticipation of the second. Anderson v. Collins (C. C. A. 8) 122 F. 451, 458; Ryan v. Newark Spring Mattress Co. (C. C. N. J.) 96 F. 101, 103; Nestle Pat. Holding Co. v. E. Frederies, Inc. (C. C. A. 2) 261 F. 780.

Figures 5 and 9 of the patent drawings in the second patent are as follows:

The mixing per se is the same as in the first patent. It is accomplished by means of a mixing pump 45, water supply line 51, nozzle 8a by means of which a high velocity stream of water is introduced into the mixing chamber 7, which draws in the cement from the hopper 5, hydrates the same and deposits it in container 54. The fluid cement is then drawn from container 54 by delivery pump 46 and pumped into the well.

During the cementing of an oil well, conditions may arise that render it necessary to vary from time to time the rate at which the cement is being pumped into the well. For example the earth may cave in, requiring the operator to slow down the delivery of cement into the well, or the cement may siphon, requiring the operator to speed up such delivery. After the cement has been hydrated it must not be permitted to stand for any substantial period before it is put in place, because if the chemical process of setting or hardening is permitted to take place to an appreciable degree the quality of the mixture is impaired. It is desirable therefore that the mixing of the cement should be speeded up or slowed down as the speed of the delivery of the cement into the well is increased or decreased. Under the methods of the second patent this is accomplished by simultaneously increasing or decreasing the speed of both the mixing pump 45 and the delivery pump 46. Changing the speed of the delivery pump increases or decreases the rate at which the cement mixture is fed into the well. Changing the speed of the mixing pump changes both the velocity and quantity of the water passing into the mixing chamber, and in fixed proportion the amount of dry cement drawn into the mixing chamber. Thus, by changing the speed of the pumps, the quantity of mixture produced and conveyed may be varied without changing the consistency of the mixture. It will be noted that the new principle discovered by Halliburton that one may vary the quantity of the mixture produced by adjusting the velocity of the stream of water and at the same time keep the proportions of water and cement constant and the consistency of the mixture uniform is an essential element in the synchronous method of mixing and conveying cement to the point of use of the second patent.

The claims of the first patent, which embody the hydraulic principle for proportioning the cement and water and mixing the same, are set out in marginal Note 1.¹

The claims of the second patent which embody such principle are set out in marginal Note 2.²

While the decree of the trial court generally adjudged the patents valid and infringed, the memorandum opinion of the trial judge shows he had in mind the claims embracing the hydraulic principle for proportioning and mixing cement with water of the first patent, and the synchronous method of the second patent, and devices for carrying out such methods.

We now pass to a consideration of certain prior patents and prior uses, which the defendant cites and relies upon as anticipations of the patents in suit.

The Schaffer patent 1,220,995 is for an apparatus for hydrating lime. It employs downwardly directed sprays of water in part to hydrate the lime, but it does not disclose a high velocity stream of water solely for mixing lime and water, nor a high velocity stream of water for inducting the lime into the mixing chamber and proportioning the lime and water.

The Faller patent 998,762 is for an apparatus for combining comminuted solids and liquids. It employs a jet of liquid for mixing...