Ortman v. Maass

• Decision Date: 16 February 1968
• Docket Number: No. 16443.,16443.
• Citation: 391 F.2d 677
• Parties: Earl R. ORTMAN, d/b/a Advance Pump & Equipment Co., Plaintiff-Appellee, v. Herbert W. MAASS, d/b/a Herb. Maass Service, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

391 F.2d 677 (1968)

Earl R. ORTMAN, d/b/a Advance Pump & Equipment Co., Plaintiff-Appellee, v. Herbert W. MAASS, d/b/a Herb. Maass Service, Defendant-Appellant.

No. 16443.

United States Court of Appeals Seventh Circuit.

February 16, 1968.

Curtis B. Morsell, Arthur L. Morsell, Jr., Curtis B. Morsell, Jr., Milwaukee, Wis., for appellant.

Jerome E. Randall, Milwaukee, Wis., for appellee.

Before HASTINGS, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.

HASTINGS, Chief Judge.

Defendant-appellant Herbert W. Maass appeals from an adverse judgment entered after trial on plaintiff-appellee Earl R. Ortman's complaint for patent infringement.

Appellee charges that appellant's device infringes three of the four claims of appellee's Patent No. 2,707,030, filed April 24, 1953, and issued April 26, 1955.

Appellant denies infringement and asserts the invalidity of appellee's patent on grounds of anticipation by prior art patents, unpatentable aggregation and obviousness. Appellant also contends appellee acquiesced in the alleged infringement and acted inequitably in bringing this action.

This action concerns adaptors for use in pitless water well installations. An adaptor is a means of connecting the vertical flow pipe, which carries water from the bottom of the well, to the horizontal supply pipe, which carries water from the well to the location where it is to be used, in such a manner that the flow pipe can be disengaged from the supply pipe and lifted out of the well, together with any appurtenances.

Use of an adapter facilitates repair and cleaning of the flow pipe and its appurtenances, such as a submergible pump. After repair or cleaning, the flow pipe can be lowered into the well and re-engaged with the supply pipe. Access to the well is provided by a removable cap on the top of the well casing.

The development of adaptors was impelled by passage of state sanitation laws requiring that fresh water wells be sealed against contamination from surface water and other sources. Before such laws became effective most wells employed pumps located in pits near the tops of the wells. These pits could not be sealed against contamination.

One method of well installation meeting the new statutory requirements utilizes a submergible pump positioned at the bottom of the well within the well casing. The use of a submergible pump makes it necessary to provide a simple means for removing plumbing fixtures and other obstructions from the well casing so that the pump can be raised to ground level through the casing for repair or cleaning. Adaptors permit the removal and replacement of the pump, flow pipe and attachments without excavation and removal of the well casing.

As described in the specification of his patent, appellee's adaptor is designed for use in a well casing of uniform diameter sealed at the top by a removable cap. A flow pipe leads from a submergible pump at the bottom of the well to the top, where it is attached to the cap.

The patented adaptor is described in the three claims in suit:

"1. In a well of the pitless submergible type, a well casing including a plurality of sections, one of the sections having an opening in its wall, a laterally extending housing rigidly secured around the opening to the well casing section in fluid tight engagement therewith, an elbow joint rigidly secured to the housing and having water tight connection therewith and adapted to have a water supply pipe connected therewith, a flow pipe, a T-coupling incorporated in the length of the flow pipe, and a slip joint including a section connected with one arm of the T-coupling and another section connected with the elbow joint, whereby the flow pipe can be connected with the elbow joint and whereby the flow pipe can be disconnected from the elbow joint and shifted laterally away from the housing.

"2. In a well, a well casing, an elbow joint rigidly secured to the well casing and in water tight connection therewith, a supply pipe leading from the well connected to one end of the elbow joint, a flow pipe extending longitudinally of the casing, a T-coupling interposed in the length of the flow pipe, and a slip joint having one section connected with the T-coupling and another section carried by the elbow joint whereby the flow pipe and the elbow joint can be interconnected by moving one section of the joint over the other.

"3. In a well, as defined in claim 1, a sealing plug closing the flow pipe above the slip joint section carried by the T-coupling."

According to the specifications, the casing is first installed and the water supply pipe is attached to the elbow joint secured to the adaptor housing. The flow pipe with the pump, T-coupling and upper portion of the slip joint attached is then lowered into the casing.

When the T-coupling is adjacent to the adaptor housing, the flow pipe is shifted sideways to move the upper portion of the slip joint into the housing and then lowered so that the upper portion of the slip joint engages the lower portion. The elbow joint secured to the housing partly supports the pump and flow pipe.

VALIDITY: ANTICIPATION

Appellant contends appellee's claims were anticipated by Patent No. 2,529,062 (Williams), issued to C. C. Williams on November 7, 1950. The Williams patent was not cited by the Patent Office.

The stated purpose of Williams was to provide a pitless well installation that would be secure from contamination. Although Williams is expressly not limited to the types of pumps described in the patent application, the pumps described are rotary and plunger types located at a distance from the well or located in the well casing above or adjacent to the lateral supply pipe.

Williams is broader in scope than appellee's patent. In pertinent part it discloses an adaptor consisting of a "connector," a "discharge connection" and a gasket. The Williams adaptor is of simpler design than appellee's or appellant's devices. The connector is a solid fitting with a passage leading from the flow pipe,¹ which screws into the bottom of the connector, to a "port" or orifice on the side of the fitting. At the port the fitting is machined to a flat surface facing down. This surface mates with an upward-facing surface on the discharge connection. The discharge connection is an integral part of the well casing.² It is a solid fitting with a passage leading from a port on the machined surface (inside the well casing) to a connection for the supply pipe (outside the well casing).

When the connector, attached to the flow pipe, is lowered into the well and positioned so that its machined surface matches that on the discharge connection, the ports on the connector and the discharge connection match, providing an unobstructed passage from the flow pipe through the connector and discharge connection to the supply pipe. A gasket is provided between the mated machined surfaces.

The connector rests on the inclined surface of the discharge connection, which protrudes into the casing. The connector is wedged between the surface of the discharge connection and the casing wall opposite the discharge connection, providing lateral pressure to hold the surfaces together. The Williams patent shows an optional means of applying downward pressure to hold the surfaces together, using a rod between the connector and the cap on the well casing.

The trial court held Williams did not anticipate claim 1 of appellee's patent. Specifically, it held Williams did not respond to the elements of appellee's claim 1. We agree.

Williams does not disclose the laterally-extended housing contained in appellee's claim 1. Appellee's housing is a box-like structure attached to the side of the casing and opening into the interior of the casing. It permanently houses the lower end of the slip joint, which would extend into and obstruct the well shaft if no housing were provided.

In contrast, the discharge connection of Williams, which appellant calls the correspondent of appellee's housing, is a solid fitting welded into the casing wall and having a passage to carry the water through the casing wall. The two housings are wholly dissimilar in structure and function.

Appellant contends that nothing in appellee's claims requires that the slip joint be housed within the laterally-extended housing. This requirement, he contends, was erroneously read into the claims by the trial court. We do not agree.

Appellee's claims do not expressly require that the slip joint and the elbow attached to the housing be contained within the housing. However, the claims are to be interpreted in light of the specifications. Oregon Saw Chain Corp. v. McCulloch Motors Corp., 9 Cir., 323 F.2d 758 (1963), cert. denied, 377 U.S. 915, 84 S.Ct. 1180, 12 L.Ed.2d 186 (1964); Minnesota Mining and Mfg. Co. v. Technical Tape Corp., 7 Cir., 309 F.2d 55 (1962), cert. denied, 372 U.S. 942, 83 S.Ct. 936, 9 L.Ed.2d 968 (1963); Scherbatskoy v. United States Steel Corp., 7 Cir., 287 F. 2d 552 (1961).

When interpreted in light of the specifications, appellee's claims implicitly contain the requirement. The specifications describe the process of lowering the flow pipe and pump into the casing. They provide that when the T-coupling on the flow pipe is at the level of the laterally-extended housing, the flow pipe should be shifted sideways to move the upper portion of the slip joint "into" the housing, after which the flow pipe is further lowered so that the two portions of the slip joint engage.

Another element of appellee's claim 1 not found in Williams is the elbow rigidly secured to the housing. In appellee's claim the elbow performs the functions of holding the lower portion of the slip joint, partly supporting the pump and flow pipe when the slip joint is engaged and changing the water flow from a downward to a lateral direction.

Williams contains no elbow related to the adaptor. In Williams the water flow is changed from an upward to a lateral direction within the...