
    In re: Irwin L. Dunn
    (No. 2333)
    United States Court of Customs and Patent Appeals,
    May 28, 1930
    
      Harry F. Riley and Arthur 0. Browne for appellant.
    
      T. A. Hostetler (Howard 8. Miller of counsel) for the Commissioner of' Patents.
    [Oral argument May 5, 1930, by Mr. Riley and Mr. Miller]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   Grai-iam, Presiding Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals affirming the decision of the examiner in rejecting claim 7 of appellant’s. application for a patent, serial No. 109702, filed. May 17, 1926. Other claims were involved, but by allowance and elimination the' only one left for our consideration is, as has been said, claim 7. This claim is as follows:

7. Tie method of cleaning wells comprising supplying a charge of water into-detritus in the well, loosening the detritus and commingling the detritus with the water by means of air delivered through the water into the detritus from, above the detritus, and propelling the water and detritus from the well by means of a following volume of air under pressure.

Appellant has invented a method of cleaning the detritus out of the bottom of an oil well which has been shot, which he claims is different from any method heretofore practiced, and which produces new and useful results. In this process he inserts tubing into the casing of said well downward to a point where it is above and clear of the Said detritus. He then injects water into the cavity containing-the detritus until it rises above the end of the tubing. This being done, he then discharges compressed air into and through this tubing,, into the water above the detritus. He claims that by discharging the air in this manner into the water the detritus is stirre.d up, mixed with the water, and more readily forced upward around the tubing and out of the well through the surrounding casing. He claims the-art heretofore has been to insert the tubing into the detritus and then • inject the compressed air, and this, he claims, will not produce the-same results.

Both the examiner and the board reject claim 7 on reference to. “ Richards’ Compressed Air Practice — article on pages 298 and 294,. entitled £ The Air Blast Foundation Sinking ’ — McGraw Hill Book Co., New York, 1918.”

It is agreed in the briefs of both the solicitor of the Patent Office- and counsel for appellant, that the portion of Richards’ which is. held to be a reference, is as follows:

The Air Blast in Foundation Svrilcmg. — A contracting company in New Tork City is making a specialty of the use of the air blast as an aid in sinking ouilding foundations. In this work the foundations are sunk to rock which is overlaid by varying depths of gravel or other compacted material. A recent undertaking was the construction of the foundations for a large 12-story Düilding where the rock was below the surface at depths ranging from 17 to-50 feet. When completed the foundation consists of a series of reinforced, concrete structures, these being formed of groups of 12-inch steel pipe filled with concrete am'ong which are distributed vertical reenforcing rods of steel.
The pipes used are in lengths of 12 or 14 feet and in the deepest parts three or four of these are required, one above the other. Each pipe, after being properly located in a vertical position is driven down a few feet by an air-operated pile-driving hammer, placed upon the top of it.
The pipe having been thus driven a certain distance the hammer is lifted off by a derrick, the pipe is filled with water, a compressed-air pipe is thrust down as far as it will go and also a test rod which is used to ascertain when the solid rock is reached.
On the street close to the work is located a 20-inch steam actuated air-compressor and a large receiver. The compressor is speeded up and when the receiver is filled to the highest working pressure, all the air is suddenly turned into the foundation pipe, blowing out the water, the dirt and the stones.

It. will be observed, that Richards teaches in this excerpt that the compressed air pipe should be thrust down into the bottom of the hole made for a building foundation “ as far as it will go.” If this method were applied to an oil well containing detritus, the compressed air pipe would be sunk through the water and into the detritus as far as it could be forced. Appellant illustrates this very aptly by drawings contained in his brief, and the correctness of these drawings is not controverted by the Patent Office.

The argument is made that the language of the claim “ by. means of air delivered through the water into the detritus from above the detritus,” might well be covered by the Richards disclosure, for Richards draws his air from a tank in the air “above the detritus.” It is manifest, from appellant’s drawings and specifications, that this is not the sense in which his disclosure should be understood. He pictures and describes a process in which his air pipe is carried from the surface, down into the water, and discharges its air into the water at a point therein above the surface of the detritus. This is plainly his disclosure.

In our judgment, the teaching of Richards is not anticipatory of the method used by the appellant here. The appellant makes a point of the proposition that he does not permit his air pipe to enter the detritus. Richards does. There is, therefore, this essential difference in the process.

The question of whether the process suggested by appellant is operative is not involved here. His claim 7 was not rejected on that ground, but on the reference above stated. Being of the opinion that Richards did not anticipate the appellant in claim 7, it follows, therefore, that the decision of the Board of Appeals should be and is, reversed, and a patent will issue on said claim 7, as requested

■ LeNkoot, J., dissents.  