(dissenting). I submit that the question of infringement in this case is not determinable upon the mechanism described in the Halstead patent. It is determinable upon the mechanism which was actually used by the appellants at the time of the institution of the suit. The court below found, and it is so shown by the evidence, that while a.t the outset the appellants may have undertaken to follow the Halstead patent, they had abandoned it at the time when the suit was commenced, and were using great care so to construct their mechanism as to make a perfect union between casing and coupling with the complete exclusion of water; that the joints of their structure were sealed with white lead, and for a considerable distance the space between the driving shaft and the walls of the casing was packed with hard grease. There can be no doubt that the appellee’s invention did, a.s was said in the case of Getty v. Bayne (C. C. A.) 262 Fed. 141, “accomplish a revolution in the well-drilling industry.” And while the invention may not be said to be of a pioneer character, it is, nevertheless, an invention of such merit as to be entitled to protection against a reasonable range of mechanical equivalents. In both the appellee’s and appellants’ mechanisms the oil is introduced at the top in substantially Ihe same manner, and by gravity it traverses the entire length of the shaft, thereby lubricating all the bearings. In both there is some escape of oil through the lowest bearing. The contention that the two systems are differentiated in that the appellee’s lubricating system is static, while that of the appellants’ is circulatory, is not sustained by the proofs. In the appellants’ mechanism, the shaft casing being made impervious to water and packed with hard cup grease a distance above and below each bearing, the ingress of water is prevented, and the movement of the lubricating oil is impeded, so that there is no substantial difference in the operation of the two lubricating systems. Both use a closed casing surrounding the pump shaft from the pump to the top of the well, the *478casing being sufficiently closed to allow the feeding of a lubricating fluid down through the same to the various bearing parts for the shaft therein. Both accomplish the same 'result by substantially the same means, operated in substantially the same way. The fact that the appellants’ static lubricants are supplemented by the use of an emulsifying oil is unimportant. The fact that in the appellants’ mechanism more oil escapes from the lowest bearing than in the appellee’s is also unimportant. The ultimate disposition of the lubricant after its office is fulfilled is immaterial. These differences do not enahle the appellants to appropriate the substance of the appellee’s invention.
In brief, the evidence shows that the appellants, as does the appellee, use a deep well pump mechanism assembled unit by unit, and lowered into tire well bore so as to hang from the surface, the mechanism consisting of: (1) A pump impeller attached to a sectional power shaft extending from the pump to the top of the well, and inclosed in a casing; (2) a water discharge sectional casing extending from the pump casing to the top of the well; (3) a sectional casing extending from the pump casing to the top of the well, provided at the end of each section with a fixed block, with bearings for the shaft closed at the top, the casing being adapted to hold the power shaft in alignment by means of the bearings to protect the power shaft and its bearings from injurious action of sand or soil in the water, and to form a means for conducting lubricant from the top down through each shaft bearing.
I think that the decree of the court below should be affirmed.