Burke
Burke v. Emsco Derrick & Equipment Co.
Opinion
Lead Opinion
Mathews, J.
Appellants filed their bill of complaint, charging appellees with infringing a patent of which appellant Mark P. Burke is the owner, and appellant the Oil Country Specialties Manufacturing Company is the sole licensee. The bill prayed for an injunction restraining further infringement of the patent and for an accounting of profits and damages. Appellees answered, pleading invalidity of the patent and denying any infringement thereof. On final hearing, the District Court held the patent valid, but not infringed, and accordingly erttered its decree dismissing the bill. This appeal is from that decree..
The patent in question is No. 1,579,753, issued to appellant Burke on April 6, 1926. It purports to be for an improvement in driving mechanisms for oil well rigs. The only improvement actually disclosed or claimed therein is an improvement in counterbalances used in such mechanisms.
The driving mechanism of the standard rig commonly used in drilling and pumping oil wells comprises a band wheel mounted on a drive shaft on which there is also a crank; a pitman connecting the crank to the rear end of a walking beam, which is centrally pivoted on a Samson post; and connections extending…
Dissenting Opinion
Haney, J.
(dissenting).
I concur with the majority that infringement of claims 2, 3, 9, and 10 by appellee is not shown.
In claim 1, appellant patented a combination, consisting of the following elements: (1) “A drive shaft, (2) a crank thereon, (3) a walking beam connected to be operated by said crank, (4) connections from said walking beam and leading into the well, (5) a counterbalance adapted to cooperate with said shaft, (6) and connections adapted to fix said counterweight so as to move with said shaft, said connections being releasable so as to permit said shaft to move without said counterweight.”
Appellee argues that its counterweight does not infringe because of an alleged difference in the sixth element. The distinction is claimed to be that appellee’s counterweight is not “releasable” but only “removable.” But when it is removed it is “released.” Appellant’s counterweight may also be released by entirely removing it. The thing patented, however, includes a “releasable” counterweight, and, 'according to the reading of the claim, it makes no difference whether the counterweight is “releasable” by removal, or by disconnection. The construction given by the majority to the word…