8 F. 269 | U.S. Circuit Court for the District of Northern New York | 1881
This suit is brought on re-issued letters patent Ni>:-4,372, granted to Nelson W. Green, one of the plaintiffs,-May 9, Í871, for an “improvement' in the methods of constructing artesian ivells;” the original patent, No. 73,425, having been granted to said Green, as inventor; January 14, 1868, on an application filed March 17, 1866. The specification of the re-issue says:
, “My invention is particularly intended for the construction of artesian wells in places where no rock is to be penetrated. The methods of constructing wells previous to this invention were what have been known as sinking ’ and ‘ boring,’ in both of which the hole or opening constituting the well was produced by taking away a portion of the earth or rock through which it was made. This invention consists in producing the well ,by driving or forcing-down an instrument into the ground until it reaches' the water, the hole or opening being thus made by a mere displacement of the earth, which is packed around the instrument, and not removed, upward from the hole, as it is in boring. The instrument to be employed in producing such a well, which, to distinguish it from ‘ sunk ’ or ‘ bored ’ wells, maybe termed a ‘ driven well,’ may be any that is capable of sustaining the blows or pressure necessary to-drive it into- the earth; but I prefer to employ a pointed rod, which, after having been driven or forced down until it reaches the water, I withdraw, and replace by a tube made air-tight throughout its length, except at or near its lower end, where I make openings or perforations for the admission of water, and through and from which the water may be drawn by any well-known or suitable form of pump. In certain soils, the use of a rod preparatory to the insertion’of a tube is unnecessary, as the tube itself, through which the water is to be drawn, may be the instrument which produces the well by the act. of driving it into the ground to the requisite depth. To-enable others to make and use my invention, I will proceed to describe it with reference to the drawing, in which figure 1. represents a portion of the pointed rod above mentioned, and figure 2 a portion of the tube which forms the casing or lining of the well. The driving rod, A., I construct of wood or iron or other metal, or of parts of each, with a sharp point, 6, of steel or otherwise, to penetrate the earth, and a slight swell, a, a short distance above the point, to make the hole slightly larger than the general diameter of the rod. This rod I drive, by a falling weight or other power, into the earth, until its point passes sufficiently far into the water to procure the desired supply. I then withdraw the rod and insert in. its place the air-tight iron or wooden tube, B, which may be slightly contracted at its lower end, to insure its easy passage to its place. In general, this tube, B, I make of iron, and of a thickness that will bear a force applied at its upper extremity sufficient to drive or force it to its place; and, where a large or continuous flow of water is desired, I perforate this tube near its lower end, to admit the water more freely to the inside. The perforations, e, may be about one-half of an inch in diameter, Jess or more, and from one to one and a half inches apart, and the perforations*271 may extend from the bottom of the tube upward from one to two feet. The diameter of the tube should be somewhat smaller than the diameter of the swell, a, on the drill end of the driving rod, D. In localities where the water is near the surface of the ground, and the well is for temporary use only, as in the case of a moving army or for temporary camps, lighter and thinner materials than iron may be used for making the tubes, as, for instance, zinc, .tin, copper, or sheet metal of other hind, or even wood may be used. The rod may be of any suitable and practical size that can be readily driven or forced into the ground, and may be from one to three inches in diameter. In some cases the water will flow out from the top of the tube without the aid of a pump. In other cases, the aid of a pump to draw the water from the well may be necessary. In the latter cases, 1 attach to the tube, by, an airtight connection, any known form of pump.”
The claim is as follows:
“ The process of constructing wells by driving or forcing an instrument into the ground until it is projected into the water, without removing the earth upward, as it is in boring, substantially as heroin described.”
The plaintiffs claim as exclusive owners of the re-issue for the county of Madison, ISÍew York, and have proved their title to that effect. The bill alleges that the defendant has made, sold, and used wells in Cazenovia, in said Madison county, embracing said invention, and tnat he has one or more of said wells and is using the same. The answer sets up as defences— ■
(1) That Green is not the “first and original” inventor; (2) that the bill “ does not describe any improvement in the method of constructing wells, or otherwise, by which the defendant can know the process or improvement in the manner of constructing wells” claimed in the bill; (3) that the defendant is a wagon-maker and has done no other business, and the manufacturing of wells is not an incident to his profession or trade; (4.) that the claim of Green as inventor was barred because the improvement was hi use more than two years prior to the granting of his patent; (5) that the re-issüe “ does • not describe any new process, or any new discovery or invention, but only claims an addition to the original patent, a patent on the free flow of water, which is not patentable, as it does not claim any patent or any new invention of the application or uses of flowing water, and is thereforo void, and of no force and virtue, and having been adopted and gone into general use by the public, said pretended patent is therefore void in law and equity.”
The answer also sets up that a United States patent granted, to James Suggett, March 9, 1865, No. 42,126, describes the same process claimed by the original patent to Green; that the re-issue to Green is an infringement on the said patent to Suggett, and on three United States patents, one Canadian patent, and one British patent, granted prior to the original patent to Green. It does not allege that the patent to Suggett was granted before the invention of Gi'een was
“A well made by driving down into the earth an iron pipe or tube shod with iron or steel point, with perforations in the tube above the point, without a screen over the same, and sections of tubing attached as driven down, until it was projected some feet into the water, and to the top of this was attached an iron pump, and the same was used for •pumping water through, and was probably used at' such place from April or May, 1861, until some time in July or August, 1861, and was known to and used by ” (certain persons named;) 'and that “ there was also put down in the town of Preble, Cortland county, New York, a well on the farm of Mr. William B. Tallman (now dead) in the summer of 1859, by using an iron tube, one inch inside diameter, and perforating it with small holes at the lower end for about one foot, and by heating and closing the lower end, so as to form a point to exclude the earth while driving. The pipe, after being thus prepared, was used by either first-driving down an iron rod, and withdrawing the rod, and then driving down the pipe in-the place where the rod was withdrawn, or by driving down the pipe without the use of an iron rod, and attaching sections of pipe by screw couplings', as driven down, till it was projected to a suitable depth into the water-bearing strata of the earth. An iron pump was then tightly screwed to the- ' top of the pipe, and, by the use of a pump so attached, water was raised for use, and ,a frame was built over it, on which was constructed a windmill, so-attached to the pump as to work the pump when the wind blew, and raise-water through the pipe for watering the stock of said William B. Tallman’s farm, and was used by and known to the public; and the samé was worked by the windmill, and used for raising water, as aforesaid, for four years, till about 1863, when the pipe was taken up, and was publicly used and known to (certain persons named.)
The answer does not allege that the use of the wells at Independence and at Preble preceded Green's invention. Finally, the answer denies'All parts of the bill not before fully answered. The answer
December, 1879, William D. Andrews and Thomas C. Theaker; June, 1880, John Q. Itoyee; August, 1880, Charles Brown, Adalbert Brown, George W. Burr, Thomas II. Tyson, J. B. Kays, Thomas J. Burr, William II. Joslin, William O. Barnard, and Joseph M. Chandler; September, 1880. John Wiley, Lewis W. Goen, A. B,. West, Jed Lake, Oscar C. Fox, Hernán F. Itobinson, William II. Chase, Joseph L. Galt, Hamilton Ward, Julia A. Green, Judson 0. Kelson, Ceylon II. Lewis, John Yandonburgh, (two depositions of his in the Ilovey suit being presented, although the notice in tills suit mentions his name only once as a witness,) W. T. Blanchard, Clinton 1). Bouton, Jesse M. Blanchard, John S. Cornue, Matthias Yan Iloesen, Seth Aldrich, Gorrit S.*274 Van Hoesen, Albert H. Van. Hoesen, Amasa G-. Aldrich, Nicholas H. Haynes, Orrin Pratt, James B. Share, Emma Share, Eben Daley, and Thomas Ballard, (another deposition of each of the witnesses Matthias Van Hoesen, Seth Aldrich, and Thomas Ballard, in the Leland suit, being also presented, although the notice in this suit mentions the name of each only once as a witness.)
Under a like stipulation and a like notice, the following depositions, taken at the following dates, in the said suit against Leland, are made evidence for the plaintiffs in this suit:
August, 1880, Nelson W. Green, Joseph L. Galt, J. A. Todd, John M. Fargo, John West, Frank Fargo, Augustus Harrington, Horace Dibble, Hiram Cran-dall, Jay Ball, James S. Squires, William P. Randall, Charles C. Taylor, John Wheeler, De Witt C. McGregor, Merton M. Waters, Stephen Brewer, Matthias Van Hoesen, Seth Aldrich, Thomas Ballard, and Ira Hazard, (the remark before made as to-the two depositions of Matthias Van Hoesen, Seth Aldrich, and Thomas Ballard being applicable here also;) August and September, 1880, Abraham P. Smith; September, 1880, Eustace D. Dibble, Noah J. Parsons, Stephen D. Freer and William S. Copeland.
The plaintiffs’ record makes 1,305 printed pages; the defendant’s, 208. The case came on for hearing on the twenty-first of March last. All the testimony taken directly for the defendant in this suit had been filed. But the defendant had not printed any of it, nor had he printed, as required by the stipulation, the testimony of the three witnesses for the defendant in the Leland suit before mentioned, Tallman, Vandenburgh, and Woolston, or any of it, nor had he filed a copy of any of it. On the fifteenth of March, the first day of the sitting of the court, the defendant applied to the court to postpone the hearing of the cause, but the application was refused. Thereupon the cause stood for hearing for the 21st, but Mr. Storke, the solicitor and counsel for the defendant, who had attended on the 15th and made said application, did not attend any more, and the defendant was not represented on the hearing. The case was not argued for the defendant, nor was any brief furnished for him. The plaintiffs’ counsel argued the cause orally, and submitted a printed brief, and subsequently a printed report of his oral argument. The plaintiffs also filed a certified copy of, and printed and submitted to the court, all the testimony before referred to as testimony for the defendant, and all their own testimony, before mentioned, has been before the court in print. Under these circumstances, the testimony has all of it been read, and the case is to be disposed of. It is very much to be regretted that the court has not had the benefit of the views of counsel on the part of the defendant as to the questions of fact
“ [Fr. Artesien, of Artois, in France, where this kind of well was first made.] A perpendicular perforation or boring into the ground, deep enough to reach a subterranean body of water, of which the sources are higher than the place where the perforation is made, and so force up to the surface a constant stream of water.”
The specification states that the instrument is to be driven down to the water, and the earth it meets with is to be displaced by it and thus packed around it, and not removed upward from it; that the tube, which is either to be inserted in the place where the instrument has been driven down, aftei such instrument has been withdrawn, or is to be itself driven down in the first place, is to be air-tight throughout its length, except at its bottom, where it has perforations to admit water; that these perforations are made for the purpose of obtaining a continuous flow of water; and that, where the water does not flow out from the top of the tube without the aid of a pump, a pump is to be attached to the top of the tube by an air-tight connection. The specification contemplates the procuring of water. The process seems to be divided into two stages—
(1) Making a hole for the tube down to water by displacing the earth by driving down a straight instrument into the earth, so that the earth is packed around the instrument; (2) having in the hole thus made an air-tight tube, substantially as large as the hole, with a pump attached to the top of the tube by an air-tight connection.
The specification does not otherwise explain the rationale of the process which results in having the water issue from the top of the tube. When a rod which is not a tube is driven down to water, there is as yet no well. When the rod is withdrawn, if the source of the water is higher than the top of the hole, water will issue from the top, and there is a well; and, when the air-tight tube is inserted in the hole, there is still a well. If the rod is withdrawn and the airtight tube is inserted, or if such tube is driven in the first place, and no water issues without the aid of a pump, there is no well, in the
“ The process of constructing wells by driving or forcing an instrument into the ground until it is projected into the water, without removing the earth upward, as it is in boring, substantially ¿s described.”
Where the well is a flowing well, the water will flow as soon as the hole is made, and to make the hole by driving and displacement, and insert the tube and have the water flow, develops the process. Where the well is not a flowing well, the pump, in addition, is necessary,.and the use of the pump in the well so made is a use of the process. Driving or forcing an instrument into the ground until it is projected into the water, without removing the earth upward as it is in boring, is an essential element in the process, in either case; and,
This re-issue was also adjudicated upon by Judges Dillon and Nelson, in Andrews v. Wright, 13 O. G. 969, and the claim was construed to be for a process such as I have defined it to be. Under this construction the defendant has infringed by using a pump in a driven well constructed in a house hired by him, to obtain a supply 0 of water for the úse of his family, although he may not have paid for driving the well or have procured it to be driven. Such use of the well was a use of the patented process.
The invention of Green is shown to have preceded any invention made by Suggett, and described in his patent of March 29, 1864. The evidence also shows that none of the defences set up in the answer are established. The conclusions arrived at in the decision in Andrews v. Carman are supported by the testimony in this case. Those conclusions relate to the novelty of Green’s invention, and to the question of the dedication and abandonment of the invention to the public by Green. This latter question must be decided under the laws in force in 1866, when the original patent was applied for. No abandonment or dedication of the invention to the public by Green is shown. The construction of the well on the fair ground at Cortland, under the direction of Green, and its use, by his consent, was an experimental use, to test it. The rule laid down in Andrews v. Carman, as to the proper construction of section 7 of the act of March 3, 1839, (5 St. at Large, 354,) as deduced from prior rulings, was that that section had no effect to invalidate a patent unless there was proof of actual abandonment or of a use of the invention, with the knowledge and allowance of the inventor, more than two years prior to his application for his patent. It was held in that case, not only that there was no evidence of any use or said of the
As to the driven well alleged to have been put down at Independence in April or May, 1861, it is quite clear that the witnesses who testify to that date are mistaken, and that the well in question was put down in May, 1866. The evidence to that effect is very complete and detailed and minute.
There must be the usual decree for the plaintiffs, with costs.