The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This suit is brought for the alleged infringement of the following patents:
(1) Patent No. 1,405,173, issued to Hervey J. Wheeler, assignor to H. J. Wheeler Salvage Company, Inc., for pumping apparatus granted January 31, 1922, on an application filed June 16, 1920, of which claim 1 is in suit.
(2) Patent No. 1,894,234, issued to Gunnar C. Engstrand, assignor to Sludge Pumping, Inc., for oil pumping apparatus granted January 10, 1933, on an application filed October 20, 1932, of which claims 1 and 2 are in suit.
(3) Patent No. 1,964,726, issued to Gunnar C. Engstrand, assignor to Sludge Pumping, Inc., for oil pumping apparatus granted July 3, 1934, on an application filed August 19, 1932, of which claim 5 is in suit.
The title of the plaintiff to the patents and its capacity to sue is not questioned.
Claim 1 of the Wheeler patent 1,405,173 has been adjudicated by this court to be valid and infringed in the following cases tried before me: H.J. Wheeler Salvage Co., Inc., v. Rinelli & Guardino, Inc., et al., 295 F. 717, and Salvage Process Co. v. J. Shewan & Sons, Inc., et. al., 26 F.2d 258.
There has been no adjudication of either of the Engstrand patents in suit.
The defense chiefly relied upon by defendant is that of noninfringement, there being no contention of invalidity of either of the patents in question, unless and except this court construes the claims broad enough to cover defendant's apparatus and method of operation, in which event defendant asserts as an additional defense that the claims in suit are invalid in view of the prior art.
A decision of this court, 15 F.Supp. 669, by another judge, awarding a preliminary injunction to plaintiff in this case, was reversed upon appeal, (C.C.A.) 86 F.2d 725, as was also an order punishing defendant for contempt, (C.C.A.) 86 F.2d 727, but they do not determine the issue tendered on this trial.
Each of the three patents in suit is directed to the cleaning or removal of sludge from tanks, such, for example, as are used by oil burning or transporting boats.
I have in my opinions, in the two former cases cited, somewhat at length stated, and the evidence in this case shows, that prior to the advent of the Wheeler patent the removal of sludge was laboriously accomplished solely by the time-consuming and expensive method of shoveling it into buckets, and hoisting them out of the holds of the ships.
The claims in suit of the patents in suit read as follows: Claim 1 of the Wheeler patent, No. 1,405,173:
"1. The herein described method of transferring viscous material directly from the interior of a maritime vessel to an overside receptacle, which consists in creating a high vacuum in said receptacle to thereby suck such material to an elevation and deliver it directly into said receptacle, and admitting air in small quantities into the suction end of the conveying pipe to emulsify said material."
Claims 1 and 2 of the Engstrand patent, No. 1,894,234:
"1. The method of pumping viscous material characterized by admitting steam at high velocity in the direction of flow at the discharge end of an open transmission line to create a high vacuum to thereby suck an air stream through the transmission line and admitting air at high velocity at the intake end of the transmission line to thereby blow the material into fragments which are suspended in the air stream during transfer through the transmission line.
"2.A pumping apparatus comprising in combination an open transmission line, steam jet means for creating a high vacuum at the discharge end of the transmission line and air cracking means at the intake end thereof."
Claim 5 of the Engstrand patent, No. 1,964,726:
"5. The method of pumping viscous material characterized by admitting a high pressure steam jet at high velocity at the intake end of a transmission line to thereby suck the material into the line in a solid column and blow it into fragments, retarding the material in the immediate vicinity of the steam jet and permitting the high pressure stream to expand unimpeded and at all times to discharge freely into the atmosphere."
The Wheeler invention, as defined in claim 1 of patent No. 1,405,173, is for a method of removing sludge through a pipe line by means of suction created by a high vacuum, and the admission of air ...