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storage and for such incidental steps to alteration, to carry out the Jones process, ward uniformity as the necessary mixing it is evident that the defense of anticipa. of the different products of the blast fur- tion by prior patents rests upon a slender nace would lead to, while in none of them is foundation. there a provision for supplying and with- Certain discussions, reported in the Jourdrawing from the mixer such quantities of nal of the British Iron and Steel Institute, metal at a time and the retention of a con- are relied upon as embodying a description siderable quantity of metal in the reservoir of the Jones process. Running through all as a necessary prerequisite to that uniform- these discussions there is the same idea of ity of product which was recognized as the the difficulties experienced in the practical great desideratum, and was the constant ef- carrying out of the direct process by reason fort of manufacturers to secure. Granting of the want of uniformity in the different that some of these devices may have been products of the blast furnaces, and the posmade use of to carry out the Jones process, sibility of remedying this and* thereby do nonc of them in practical operation seems ing away with the expense of remelting the to have been effective to secure the desired pig iron in cupolas by a mixture of such result. A process patent, such as that of products in a reservoir intermediate the fur: Jones, is not anticipated by mechanism naces and the converters; but the dominant which might with slight alterations have idea of the Jones patent, of maintaining a been adapted to carry out that process, un permanent and large quantity of molten less, at least, such use of it would have oc- metal in the mixer for that purpose, does curred to one whose duty it was to make not seem to have occurred to any of the practical use of the mechanism described. writers upon the subject. Through all In other words, a process patent can only these papers there is an admission of pracbe anticipated by a similar process. A tical failure in the efforts theretofore made mechanical patent is anticipated by a prior to obviate the difficulty, and a half-exdevice of like construction and capable of pressed hope that American ingenuity might performing the same function; but it is oth ultimately solve the problem. Some of the erwise with a process patent. The mere pos- expressions, taken by themselves, seem to session of an instrument or piece* of mech. foreshadow the Jones idea; but there was anism contains no suggestion whatever of nothing in any of these discussions that all the possible processes to which it may filled the requirement of the law (Rev. be adapted. New Process Fermentation Stat. $ 4886) of a description in a publica. Co. v. saus, 122 U. S. 413, 428, 30 L. ed. tion sufficient to anticipate the patent. 1193, 1198, 7 Sup. Ct. Rep. 1304. If the In some of the very works where attempts mere fact that a prior device might be made had been made to adopt a direct process effective for the carrying on of a particular they were abandoned as unprofitable, and process were sufficient to anticipate such the Jones invention_subsequently adopted. process, the absurd result would follow The witness David Evans, manager of certhat, if the process consisted merely of tain iron works in England and Wales, manipulation, it would be anticipated by sums up his testimony in the following anthe mere possession of a pair of hands.

"Prior to the invention of Captain True, if the process were the mere func-Jones several firms used the direct process, tion of a machine, another machine capable but the results were not very satisfactory, of performing the same function might be as explained before, through want of uni. an anticipation; but this is not because a formity. The results obtained gave a large process can be anticipated by a mechanism, number of defectives. But since the adopbut because, as we have held in several tion of the mixer at the various works I cases, the more function of a machine is not have been engaged, we have reduced the de patentable as a process at all. Corning, v. fective or second-class rails fully one half, Burden, 15 How. 252, 14 L. ed. 683; Risdon and also saved the remelting.” Indeed, it Iron & Locomotive Works v. Medart, 158 U. is stated by several of these writers that the 8. 68, 39 L. ed. 899, 15 Sup. Ct. Rep. 745. adoption of the Jones invention reduced the

To enable the Jones process to be success. defective rails to something like half of fully carried out it is necessary (1) that what they were before. the intermediate reservoir or mixer should Our attention is also challenged to cerbe of large size, "say, 100 tons” capacity; tain unpatented practices, among which is (2) that it be covered to prevent the access one known as the Whitney foundry practice of cold air from without; (3) that it be for the casting of car wheels, wherein the provided with a stop, so that it may not be metal is tapped from three cupolas into an tilted so far as to be emptied of its contents; open reservoir of eight to ten tons' capaci. (4) that a quantity of molten metal soty, permitted to mix and even up in it, and large as to absorb all the variations of the the charges withdrawn to be cast into car product of the blast furnace received into it wheels, the reservoir being maintained half and thus to unify the metals discharged in. full. The practice was to run the metal to the converters, be constantly retained in from the cupola furnaces into the reservoir it. None of the prior patents or processes ladle until it was nearly full, then to begin to which we are referred meets these re pouring out charges into the casting ladles, quirements. Indeed, it is scarcely too while still continuing to pour metal into * much to say that none meets more than the ladle from the furnaces, the ladle being one of them. When we add to this that kept approximately full during the working none of them was ever used, or was ever day, when it was emptied and refilled on the susceptible of being used, without material' following day. Aside from the fact that


this process has only to do with cupola | ready undergone the refining process of the metal, uniformity in which was largely se- blast furnaces. In Jones, we take metal dicured by a careful selection of the pig iron rect from the furnace and discard the cupocharged into the cupola furnaces, and had la. It will thus be seen that apart from the no reference whatever to the direct process wide difference between the primary work of charging converters with the product of a huge blast furnace, the base of all of blast furnaces, it appears that, while metallurgy, and the cupola of the founder, Whitney recognized the fact that the charg- a mere subdivision of that art, we find in es of iron from the cupolas, when run to the Jones and Whitney processes a substan. gether into the ladle, would mix, it appears tial difference of purpose, of process, and of that with this running together of the dif. subject matter of work." ferent charges the mixing operation ended. It should be borne in mind throughout The maintenance of a permanent pool, and the whole of this discussion that Jones the constant pouring in and out in ladle never claimed to have succeeded in making fuls,-the essence of the Jones invention,- a perfectly uniform product; that his obhad nothing to do with the process. In-ject was to procure a uniformity which was deed, it may be doubted whether the mix. adequate for the complete carrying on of ing of the cupola metal was of any substan- the Bessemer process, or, as his second tial value. Evidently it suggested to no claim states, “for further treatment,” and one the Jones process. It is now too late really to obviate the necessity of remelting to insist that it would have been suggested the pigs, which had heretofore been regardto any mechanic of ordinary skill and intel- ed as preliminary to the further treatment ligence. But if the Whitney practice were by the Bessemer process. primarily for the purpose of mixing, and Substantially the same remarks may be were adequate for that purpose when ap- made with regard to the Kirk publication, plied to cupola metal carefully selected be which had to do only with the mixing of forehand, it might be, and evidently would cupola metal. This publication was first have been, wholly inefficient when used for held by the Patent Office to be an anticipathe purpose of unifying the products of tion of the Jones process, the application blast" furnaces,-in other words, for the for which was rejected upon that ground. Jones process; and it might and did require Upon further consideration, however, and invention to make such changes as were with some slight amendments, the applicanecessary to adapt it to such purpose. tion of Jones appears to have been reconDoubtless there was such mixing as the sidered, and was finally granted. carefully selected cupola metal required * An attempt was made to show that the for the purpose of manufacturing car Jones invention was anticipated by a prac. wheels, but the fact that the Whitney practice, common in steel works prior thereto, tice was used for cupola metal has but lit- of tapping iron from cupola furnaces into tle tendency to prove that it was adaptable a receiving ladle, which became known as without change to metal tapped from blast the Bessemer cupola ladle, from which it furnaces, which varied so largely in chemi- was poured into the converters. Molten iron cal composition.

was tapped from several cupolas into this The following observations of the District ladle, from which a charge was drawn and Judge are illustrative of the distinction be delivered to the converter vessel. Of tween the Whitney foundry practice and course, if the ladle were of greater capacithe Jones process:

ty than was necessary to charge a single “We must avoid being misled by mere converter, a residuum of metal would be left terms and subjects of work. While Jones in it; but this seems to nave been merely and Whitney both desired the melting of an incident of the operation of the ladle,

metals, yet they had widely different objects which was used primarily for storage, and o in view. Whitney's purpose was to cast to have been of no substantial benefit in se

molten metal into a finished product: curing uniformity of product, which can Jones's merely to prepare molten metal for only be obtained by making the receiver of further treatment, to wit, decarburizing it larger size, and retaining a considerable into steel. The sine qua non of purpose in quantity of metal in it after each dis. Whitney was product uniformity. Uni-charge.' The witness Kennedy says of this formity of quality in car wheels is required, process: so they will stand strain and uniform “The irons were carefully selected from wear."

the different piles to make up the cupola "In the Bessemer direct process you can charges.

I have often seen the lanot secure, initially or by treatment, uni. dle drained in pouring into the converter. formity of molten metal. So far as yet de.

It did not hold two full charges. veloped, the best you can do is to make the

I never knew of the ladle being nonuniformity gradual and not abrupt. used for mixing purposes. If such was the In Whitney, nonuniformity, whether grad practice I would have known it. ual or abrupt, would be alike fatal. In The capacity of the ladle was so small, and Whitney, relatively absolute uniformity is the size of the pool of metal, when there an essential of product and a sequence of was a pool, was of such varying size, that material used. In Jones, uniformity is a I do not see how any mixing could be acnonessential-in fact, a nonattainableat. complished.

Q. 18. When was this tribute of product, and is a necessary, non- ladle drained, and when would there be some sequence of material used. In Whitney, inetal left in the handle?—A. There would we remelt in a cupola metal which has al.' be no regularity in the process. The rate


at which the converters take the metal does | ent invention is the method of storing sucnot always correspond with the rate at cessive charges of molten metal in a recepwhich the cupolas are melting.”

taclc before using it in converters or other. It is true the Jones patent is a simple wise;" and hence it is insisted that the one, and in the light of present experience main feature of the invention was storage it seems strange that none of the expert and not mixing; but the subsequent words steel mnakers, who approached so near the of the same sentence, "drawing portions of consummation of their desires, should have the metal from the receptacle without at failed to take the final step which was need any time removing the whole thereof, and ed to convert their experiments into an as- from time to time replenishing the receptasured success. This, however, is but the cle with fresh charges, which mingle with the common history of important inventions, residual molten metal already therein, for the simplicity of which seems to the ordi. the purpose of rendering the successive tapnary observer to preclude the possibility pings of metal uniform in quality,"_convey of their involving an exercise of the invent a wholly different impression, and show ive faculty. The very fact that the attempt that the primary object was that of mixing which had been made to secure a uniformity il'erent charges for the purpose of securing of product seems to have been abandoned uniformity in the metal when discharged after the Jones invention came into popular into the converters. This appears still notice is strong evidence tending to show plainer in the claim appended to this spethat this patent contains something which cification: "The process hereinbefore dewas of great value to the manufacturers of scribed, which consists in storing charges steel, and which entitled Jones to the re- of molten metal in a covered receptacle proward due to a successful inventor.

vided with a heat-retaining lining, remov. 2. The phraseology of the patent and the ing portions only of the molten contents of amendments introduced in the Patent Office the said receptacle, without entirely drain. are made the subject of much criticism, ap. ing or emptying the same, and successively parently for the purpose of showing either replenishing the receptacle with fresh addi. that Jones did not understand what he had tions of molten metal, whereby the characinvented, or that the specification did not ter of the several charges of metal so treatcontain "such full, clear, concise, and ex. ed is equalized; substantially as described." act terins as to enable any person skilled The word "storing” was evidently used in in the art

to make, construct, the sense of pouring the metal into the res. compound, and use the same." Rev. Stat. ervoir or mixer, as essential to the mainte§ 4888. If these criticisms are not alto nance of a dominant pool therein. The apgether clear, they are pressed upon our con- plication was evidently considered as not sideration with an earnestness which chal. sufficiently differentiating this from former lenges a careful consideration of the history patents, and was rejected upon reference to of this patent in the Patent Office.

the Witherow patents and to Kirk's FoundIn his first application the patentee stat. ing of Metals. Certain slight amendments ed that "the primary object of the inven. were then made in the specification, the tion is to provide means for insuring uni. claim verbally changed, and an argument formity in the product of a Bessemer steel submitted to the effect that the purpose of works or a similar plant, in which the met the Witherow patent was "to receive and al from more than one blast furnace is em store the molten metal for the purpose of ployed to charge the converters. The prod. preventing the detention, incident to the uct of the different furnaces, or of the necessity of discharging the contents of the same furnace at different times, varies blast furnace when there is no converter in quality,

so that

the ready to receive it;” whereas the distinct. manufactured steel lacks uniformity in ive idea of the Jones patent was “to have a grade. To avoid this I employ suitably receptacle capable of holding metal in a constructed reservoirs or vessels, into which molten condition into which metal, it may the molten metal from the blast furnaces is be from several blast furnaces, is run from put, the vessels being of proper capacity to time to time, and from which metal is hold a considerable charge of metal froin a drawn for treatment in the converters, or a single furnace, or from a number of fur- otherwise as required." naces, and being adapted to retain the metal This was evidently considered as still too in a molten state for sufficient time to en. indefinite, and the application was thought able the different charges to mix and be to be fully met by the description in Kirk's come homogeneous.


appara- Founding of Metals, and was rejected. tus possesses also an additional advantage Thereupon the application was again in that it makes it possible to dispense amended, its present phraseology adopted, with cupola furnaces for remelting the pigs and the distinguishing feature of the inpreparatory to charging the converters. vention more clearly set forth. Without The metal may be tapped from the blast further suggestion the application was al. furnace into ladles or trucks, carried to and lowed, and the patent issued. discharged into the mixing reservoir or veg. It is true the process is described in the sel, and there retained in a molten state un second claim as å "method of mixing moltil susñcient metal has been accumulated to ten metal," from which we are asked to in. charge the converters."

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fer that it was intended to include the prodIt is true that he subsequently states, as ucts of cupola as well as of blast furnaces, observed in the opinion of the court of ap- whereas in the very first sentence of the peals, that "the main feature of my pres-' specification it is stated that “in practice it




is found that metal tapped from different securing uniformity in the admixture of blast furnaces is apt to vary considerably silicon and sulphur, but also another pro in chemical composition.

Especial. cess, similar to that now used by the plain. ly is this so in the process of refining crude tiff and defendant, and by means of which iron from the smelting furnace and charged the operation of Bessemerizing iron was directly into the converter without remelt made,

without securing uniformi. ing in a cupola, and, although such direct ty in the product, then

it is mani. process possesses many economic advanta- festly clear from his patent and from all ges, it has on this account been little prac- the surrounding facts that he deliberately tised.” The first claim of the patent is ex- and carefully suppressed any disclosure of pressly for an improvement in the art of this invention in his specification." refining iron directly from the smelting fur- One of the arguments that this was the

The second claim apparently extends case was that if Jones "believed the method to the art of mixing all molten metals, but of use by which abrupt variations in silicon the specification, taken in connection with could be avoided without securing uniformthe disclaimer, which describes a process ity in product to be a patentable invention, designed to dispense with the use of cupo- there was even more reason for carefully las, shows that it was intended to include suppressing all suggestion of such a mode metal tapped from blast furnaces, and was of use in the patent for the manipulation to probably intended to be limited to that. obtain uniform products, because the two Whether the claim would be void if con processes are obviously alternative and in strued to include cupola metal it is unnec consistent with * each other, incapable of essary to consider. İt clearly includes met being claimed in one application, and thereal from blast furnaces, and is not rendered fore disclosure might have worked a loss void by the possibility of its including cupo- of a possible grant of the patent for the alla metal. The claim of a patent must al. ternative mode of use." ways be explained by and read in connec- It is true that its construction of the pat tion with the specification, and this ent was pressed upon the courts by the declaim clearly includes metal taken from fendant with great earnestness and elabo blast furnaces, the question whether it in- rateness of detail, and appears to have cludes every molten metal is as much elimi- created an impression of its soundness upon nated from our consideration in this case the circuit court of appeals, but the circuit as if it were sought to show that the word court did not seem to look upon it as the “metal” might include other metals than turning point of the case, nor do we regard iron. Were infringement charged in the it as at all decisive. It seems to assume use of an apparatus for mixing cupola met. that the second claim can only be met by al, the question would be squarely presented cvidence of absolute uniformity of prodwhether the claim had been illegally ex. uct, whereas all that is claimed is a uni. panded beyond the specification.

formity in the constituent parts of molten * Much ingenuity and many words have been metal preparatory to further treatment; expended in an endeavor to prove that the in other words, to make it fit for further plaintiff and defendant, as well as the treatment in the converters, without the courts, differed widely in their construction necessity of remelting in the cupolar furof the patent and of what Jones was trying naces. Or, as stated by the district judge: to accomplish. Upon the theory of the de- “It is therefore plain that with a mixer fendant the circuit court "did not attempt thus operated it is possible to have wide to construe the patent in any proper sense, variations in the composition of the blastbut bent all its energies to wrest and tor- furnace metal charges added, and at the ture the plain English of the patent into a same time the successive withdrawals for meaning diametrically opposed to that the Bessemer converter show quite small which it bears on its face," and to make it and gradual changes of composition. The appear that the great trouble at the time heat of the detained mass is affected by the Mr. Jones conceived his invention arose, not incoming charges just from the blast fur. from any lack of uniformity in the percen. nace, but the heat of such addition, whether tages of silicon and sulphur, but were sole relatively high or low, must mingle with, ly the natural difficulties incident to abrupt be modified by, and average with the heat variations in the percentage of silicon pres of the larger and dominating mass.” ent; and that his statement that the trouble With regard to this portion of the opinin the Bessemerizing operation, which was ion, counsel for defendant observes: the thing Jones had in mind to obviate, was “The judge of circuit court, having lost absolutely irreconcilable with the specifi- sight of the statutory requirements as to a cation of the patent, because the sole ob- full, clear, and concise statement of the inject stated by Jones was to secure products, vention, and having persuaded himself that whether of Bessemer steel or otherwise, it was his judicial duty to find a way if which would be practically homogeneous possible to protect the Carnegie Company and substantially uniform in their con- in his monopoly of what Mr. Gayley and tained sulphur and silicon,-results which his colleagues claim ought to have been the can only be obtained by mixing the iron to invention described in the patent, adopted a substantial uniformity. Defendant fur- the ingenious view that the patent was to ther states its view of the case as follows: be construed as though it disclosed and cov.

"If, as a matter of fact, Mr. Jones, at the ered two inventions, one having for its time he applied for his patent, had in view object to obtain a product substantially uninot only the process described by him for 'form in its contained silicon and sulphur,



and the other having for its object the im- | added and from which they were withprovement in the operation of Bessemerizing drawn. The other causes were intended to iron which is incident to an avoidance in disclaim the casting of the metal into pigs. the successive charges of abrupt variations We think there is no force in the criticism in contained silicon."

that a disclaimer may not extend to a part *We have not, however, been able to per of the specification, as well as to a distinct suade ourselves that the two processes are claim. Hurlbut v. Schillinger, 130 U. S. 80 alternative and inconsistent with each 456, 32 L. ed. 1011, 9 Sup. ct. Rep. 584; other as to render them mutually destruc. Schillinger v. Gunther, 17 Blatchf. 66, Fed. tive, or to justify counsel in charging the Cas. No. 12,458; Schwartzwalder New district judge with an abdication of his York Filter Co. 13 C. C. A. 380, 26 U. S. judicial duty of deciding the case according App. 547, 66 Fed. 152. Had the purpose of to what he believed to be the law and the the disclaimer been to reform or alter the facts. We dismiss the subject with the sim- description of the invention, or convert the ple observation that much more seems to claim from one thing into something else, have been made of it than it deserves, and it might have been objectionable, as patents that a reference to the second claim shows can only be amended for mistakes of this its object was to secure uniformity of the kind by a reissue. But the disclaimer in molten metal in its constituent parts pre- this case appears to have been made to obparatory to its further treatment, by which viate an ambiguity in the specification, and further treatment we are to understand the with no idea of obtaining the benefit of a Bessemerizing process of converting metal reissue. If the clauses had the effect of into steel, and that any step in that direc- broadening the patent the disclaimer retion would necessarily lead to an avoidance moves the objection. If they did not, the of abrupt variations in silicon and sulphur, disclaimer could do no harm, and cannot be while such avoidance of abrupt variations made the subject of criticism. would in their turn only tend toward a It is insisted, too, that there is no mengreater uniformity of product.

tion in the second claim of a dominant Some criticism was made upon the action pool, and that the words "removing portions of the court in permitting a disclaimer of only of the composite molten contents of certain clauses in the specification, printed the receptacle without entirely draining or above in italics, which was made after the emptying the same, and successively reargument and upon the petition of the plenishing the receptacle with fresh ununi. plaintiff, that at the hearing of this cause form additions,” are satisfied by leaving a it was taken by surprise by the argument quantity of iron, however small, in the resof the defendant that the portions of the ervoir, and that it really, includes nothing specification now disclaimed enlarged the that was not well known before. It is true scope of the invention of the said letters that neither the size of the reservoir nor patent beyond what your petitioner believes the amount of metal to be left therein, to be the import of the claims thereof." after each discharge is made into the conUpon the hearing defendant seems to have verter, is specified; but it is stated in the insisted that certain portions of the speci- specification that this reservoir may be of fications were broader than the second any convenient size, "holding, say, 100 tons claim. Those parts of the specification there of metal (more or less),” with the bottom fore were disclaimed. As we had occasion of the discharge spout some distance above to observe in sessions v. Romadka, 145 U. the bottom of the vessel, “say, 2 feet in a S. 29, 36 L. ed. 609, 12 Sup. Ct. Rep. 799, hundred-ton tank, and more or less, accord. "the power to disclaim is a beneficial one, ing to the capacity of the vessel, the purand ought not to be denied except where pose of which is that when the metal is it is resorted to for a fraudulent and de- poured out of the spout a considerable ceptive purpose.” In that case the plaintiff quantity may always be left remaining and was permitted to enter a disclaimer of all unpoured, and that whenever the vessel is the claims but the one in suit, the patentee replenished there may already be contained having included in the patent more devices in it a body of molten metal with which the than properly could be the subject of a sin. fresh addition may mix." Though the size gle patent. In the case under consideration of the reservoir and the considerable quanthe disclaimer was not of a claim but of tity left therein as a dominant pool might certain statements in the specification, have been described more definitely (but which if retained might be construed to perhaps at the risk of an infringement be. have the effect of illegally broadening the ing avoided by one using a receiver of a second claim. The first statement dis- I different size containing a different quan. claimed was that the invention might be tity), we think it is impossible to read this practised by merely receiving a number of patent without gathering from it the domi. small portions of metal taken from differ nant idea of Jones not to describe a reserent ladles, the mixing being performed voir for storage, with or without incidental merely by the act of pouring into the charg- mixing, but to provide a receptacle the ing ladle. The use of the word “merely main, if not the sole, object of which is to ignored the steps embodied in the second preserve therein a large and constant quan: claim, where the mixing is not performed tity of molten iron as a basis for a gradual by merely pouring together the several unification of the product of several blast charges into a ladle, but by maintaining a furnaces, or of several casts from the sanie permanent quantity of metal in the reser- furnace, and herein distinguishing it from soir, to which charges were alternately'all prior inventions. The specification of


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