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of,” with receiving and charging spouts, aported upon cradles of rollers, and the mo gas-heating appliance contained in the dis- tion is imparted to the reservoir by hydraucharging spout, and so constructed that, lic cylinders.” As this cause, as already after being fully charged with molten met stated, does not involve the Jones apparaal, drawn from the furnaces into ladles and tus patent, no question of infringement of poured into the reservoir, as the metal was the mechanical device embraced in such patpoured out for use a considerable residue ent can possibly arise. In this reservoir the would remain in the reservoir to mix with molten metal as tapped from the furnaces an incoming charge.

was stored continuously, and the reservoir The patent embodied two claims which was drawn upon with like continuity to read as follows:

supply molten metal for treatment in the "1. In the art of refining iron directly converters. While it is not asserted that from the smelting furnace, the process of the use of the reservoir, as just stated, equalizing the chemical composition of the caused the metal stored therein to become crude metal by thoroughly commingling or uniform in its chemical constituents, it is mixing together the liquid metal charge conceded that the method pursued counterand subsequently refining the mixed and acted the inconvenience of sudden variations equalized charge, substantially as and for in the metal as drawn for converter pur. the purposes described.

poses. “2. In the art of mixing molten metal to There is controversy, however, whether secure uniformity of the same in its constit. the defendant, in reservoiring its molten uent parts preparatory to further treat- metal, irrespective of the supply and de ment, the process of introducing into a mix- mand, intentionally retained in the resering receptacle successive portions of molten voir a considerable residuum. From the metal ununiform in their nonmetallic con. view taken by me, however, it is unneces. stituents (sulphur, silicon, etc.) removing sary to pass on this contention, since the portions only of the composite molten con- principles deemed by me applicable to the tents of the receptacle without entirely cause will be wholly unaffected, even if it draining or emptying the same, and succes- be conceded that the defendant, in operatsively replenishing the receptacle with fresh ing its reservoir, in filling it with molten ununiform additions, substantially as and metal, and in drawing the same off for use for the purposes described.”

in the converter, designedly held in the resOn December 2, 1895, the Carnegie Steel ervoir a considerable residuum of molten Company, Limited, which had acquired full metal in order that the metal which was title to the Jones patents, commenced the subsequently charged into the reservoir present suit against the Cambria Iron might commingle with that retained. Company for an alleged infringement of the The cause was decided by the circuit foregoing process patent. The defenses court in favor of the* complainant.

The made by the answer were substantially a court held that the second claim of the patdenial of infringement and an averment of ent referred alone to metal direct from the want of patentable novelty.

blast furnace intended to be Bessemerized in After the evidence for the defendant was a converter, and that the object was, not all in and several witnesses had been exam. the obtaining, by mixing, a molten metal ined in rebuttal, the complainant, on March substantially uniform in its chemical con30, 1897, stated “that at the hearing of the stituents, but the avoidance of abrupt vari: cause he will urge infringement of the sec ations between the various charges supplied ond claim only of the patent in suit.” At to the converter. The patent was construed the close of all the evidence the complain- as not contemplating the mixing of batches ant filed what is termed a "petition for dis- of metal; that is, the filling up of the apclaimer," praying that the court would re- paratus and a drawing down to a “resi. ceive in evidence a certified copy of a dis. due" before replenishing. The gist of the claimer of portions of the specifications, Jones idea was stated to be “the creation which on that day had been sent to the Pat- and maintenance of a great pool of metal ent Office for filing. The trial court ad between the blast furnaces and converters, mitted the disclaimer in evidence. The por- through which all the incoming and outgotions of the specifications* covered by the ing metal must pass,” by which means disclaimer are printed in italics in the pat- abrupt variations were prevented, although ent as reproduced in the opinion of the neither a uniform molten metal nor a unicourt. The disclaimer need not be further form product was thereby obtainable. In. noticed at this time.

deed, the court said: "In Jones, uniformi. It was shown beyond question that in ty is a nonessential-in fact, a nonattainaNovember, 1895, the defendant had erected ble—attribute of product, and is a neces. at its works a reservoir of the capacity of sary nonsequence of material used.” about 300 tons, for the storage of molten While the court found that reservoiring metal drawn from its blast furnaces, the was well known in the art at the time the metal so stored being held in the reservoir Jones patent was obtained, and that mixing for the purpose of treatment in the convert- necessarily resulted from such reservoiring,

This reservoir was described by a wit. it held that the Jones method was patenta. ness in the following condensed manner: ble, because the reservoiring known to the "It was cylindrical in shape, with slightly art contemplated storage, and not the preconvex ends, and in turning (for the pur- vention of abrupt variations; that although pose of pouring out the metal] it revolves a mixing of the metals was of course the upon the center of the cylinder. It is sup- ' inevitable result of the reservoiring, such






fact did not preclude the validity of the sult of such reservoiring; but it is decided Jones patent, because prior to its grant the that this fact did not operate to deprive mixing arising from reservoiring was inci. the Jones" method of novelty or to relieve dental to storage, while under the Jones the defendant from the charge of infringemethod the storage was incidental to the ment. mixing. The court said:

My mind is unable to assent to the con“Now that mixing of some character struction which the court aflixes to the pattook place in the ladle during these opera- ent, and as it is conceded that the method tions; that where it took place the result- used by the defendant does not infringe unant was a homogeneous average of all con. less the patent has the import which the stituent ingredients contained, -are facts to court has given to it, the reasons for my gainsay, which would be to question na. I dissent would perhaps be most directly ture's laws; but the indisputable fact re-made manifest by stating what seems to me mains that such mixing was accidental, ec. to be the true construction of the patent. centric, and nonsystematic, and therefore Doing so, however, is for the moment prenot of a systematic, regular, functional type termitted, for two reasons: 1. Because to or for a systematic, functional purpose.” my mind it seems that even if it be granted,

A decree was entered reciting that the arguendo, that the patent is susceptible of patent in question was valid as to the sec- the construction which the court has placed ond claim thereof; that the defendant,*"*by upon it, on the face of the opinion, the con. reason of the use of a certain method of clusion reached is wrong; in other words, mixing molten pig metal, as in the said the opinion of the court to me seems selfcomplainant's bill set forth, has infringed destructive. 2. Because if the concession the said recited letters patent as to the sec- of the court be accepted, that reservoiring ond claim thereof, and has violated the ex- and mixing were well known in the art, then clusive rights of the said complainant there it follows, from a consideration of the recunder.It was adjudged that recovery be ord, that the patent, as construed by the had of the gains and profits made by the court, was wanting in patentable novelty. defendant and the damages sustained by That is to say, if the admissions of fact complainant, and a master was appointed made in the opinion of the court are right, to ascertain the amount of such gains, prof. its conclusion is demonstrated by the record its, and damages. The defendant was, in to be unsound. general terms, enjoined from any further Let me briefly advert to the opinions of infringement of the second claim of the let- this court and of the circuit court, to point ters patent and of the exclusive rights of out the reasons which constrain to the first complainant thereunder.

proposition just stated. The circuit court An appeal was taken to the circuit court concluded that the reservoiring of molten of appeals. That court held that the sec metal from cupola and blast furnaces for ond claim of the patent did not cover the use in casting or in converters was well retention in reservoiring of a considerable known to the art at the time the Jones pat. residuum, even though the same was desig: ent was applied for. It also declared as fol. nated as a dominant pool, and if it did that lows: “That mixing of some character took the method was not patentable in view of place in the ladle during these operations; the state of the art. and that the proceed that where it took place the resultant was ings in the Patent Office demonstrated that a homogeneous average of all constituent in. this was in effect conceded by Jones. It gredients contained, -are facts to gainsay was decided that the defendant had the which would be to question nature's laws." right to reservoir its molten metal, and But this was held not to establish that at that its method of doing so did not infringe the time the Jones method was patented the patent. The court decided that the dis- that method as now construed was known to claimer was not warranted by the statute, the art or had been anticipated, because, in but that in any event it was ineffective to the prior practice, the mixing "was acciden. alter the true meaning of the patent. tal, eccentric, and nonsystematic, and thereThereupon the decree of the circuit court fore not of a systematic, regular, functional was reversed.

type, or for a systematic, functional purThis court now reverses the decree of the pose;" that such mixing was incidental to circuit court of appeals, adopts the views of storage, while in the Jones method storage the circuit court, and in effect affirms the was incidental to mixing.

This court apdecree of that court. The court expressly provingly adopts and elaborately restates upholds the theory of a dominant pool, and these views. decides that the Jones patent related, not Now, my reason does not enable me to to the obtaining of uniform molten metal conceive how, consistently with the view of by mixing in a reservoir, and a resultant the prior state of the art as to mixing and uniform product, but solely to the procur- reservoiring which is admitted, the concluiing. by means of reservoiring, molten metal sion as to the patentability of the Jones which would not abruptly vary in its chem method as construed can be sustained. ical constituents when drawn from the res. It would seem to be beyond question that, ervoir for use in a converter. The opinion as it is held that the mixing resulting from of this court now, as did that of the circuit the storage as practised prior to the grant court, expressly concedes that reservoiring of the Jones patent was the resultant, as of molten metal was well known in the art stated. of a well-known law of nature, it at the time the Jones patent was applied must follow that the qualifying words "acfor, and that mixing was the inevitable re-'cidental, eccentric, nonsystematic, and func


tional type or purpose" could only relate to storing of the fluid for use as required, and the conduct of the persons who practised this implies the drawing off as desired, the the method prior to the Jones patent. This replenishing at will, and the keeping of such must be unless it can be said that a well-residuum or reserve supply as may be known law of nature was accidental, eccen- deemed best. It may not be doubted that tric, nonsystematic, and nonfunctional. The to say that one who stores fluid for use is qualifications, then, applying, not to the law obliged, whenever he draws any off, to draw of nature, but to the conduct of parties, the all off before replenishing, is to say that reasoning must come to this: Although the such party has not the right to reservoir. method attributed to the Jones patent was If it be meant by the court that the right well known to the art at the time that to reservoir carries with it the right to draw patent was issued, and hence it was intrin-off or to retain at will, unless the person sically wanting in patentable novelty, nev-reservoiring intends to retain a residuum for ertheless such method must be held to have a particular purpose, the reasoning reduces embodied invention because the well-known itself again to the proposition that the Jones practice was carried out by individuals in a patent covers, not the process described varying and irregular manner. But this is therein, but the mind and intention of the only to say that while the Jones method was individual who may exercise the right to old, it must be treated as new because of the reservoir molten metal. That is to say, my conduct of individuals in applying the reason does not enable me to understand method and their intentions. And this re- how the right to reservoir can be admitted, duces itself to the proposition that the Jones and yet such right be at once denied by a patent as construed covered the mere inten- construction of the patent which imposes tion or mind of persons. The reasoning is qualifications on the right to reservoir, equally applicable to the distinction which which, in effect, renders its beneficial exeris asserted to exist between storing and the cise impossible. In other words, I fail to mixing incidental thereto, and mixing with see how the exclusive right can be conferred incidental storage. The mere form of ex- to do the very thing which the court admits pression cannot create a distinction where was well known at the time the patent to none exists, or destroy a law of nature. As Jones was issued. The conflict which my by me it cannot be conceived that various mind perceives between the facts admitted charges of molten metal can be stored in a upon the face of the opinion and its conclucommon reservoir without resulting mixing, sion is expressly pointed out by the opinion it follows necessarily, by the law of diffu- itself, where it is said: "If the contents of sion of fluids, the mixing is the secondary the mixer used by the defendant were al result arising from and created by the pri-lowed habitually to become empty in carrymary act of storage. It is impossible that ing out its process there would be no inthe secondary force can be caused to become fringement." That is, if in the use of its the first and creating power by a mere col-reservoir the defendant did not habitually location of words. If, then, the distinction retain a residuum there would be no inhas significance, as of course it must have, fringement. But the admission that the since the court makes it the basis of its occasional use of a residue would be no indecision, it can only mean this, that those fringement concedes that the patent did not who practised the reservoiring of molten embrace the right to use a residue, for if it metal before the grant of the Jones patent was covered by the patent it would be an mainly contemplated storage, and did not in infringement to avail of it even occasionally. their minds take into view the inevitable Thus it must follow that the exclusive right mixing which would arise therefrom by a which the court upholds is expressly delaw of nature; therefore, in the minds ofclared to relate, not to the process, but to the person so reservoiring, the storage was the mere habit of the defendant. the primary, and the mixing the incidental, For the purpose of demonstrating the secconsequence. But, on the contrary, as those ond proposition previously adverted to, let reservoiring metal after the Jones patente now recur to the state of the art as demust be considered to have contemplated, picted by the record, in order to point out first, the advantages resulting from mixing, that even if the Jones patent embodied the therefore, in their minds, the mixing is the process which the court now attributes to it, principal and the storage the accessory. But process was wanting in patentable novthis is only again to say that while the elty. In doing this, for convenience, the Jones method was old it is to be treated as molten metal drawn from cupolas for founsubject is thus divided: (a) The use of new because it covered the intention of those dry purposes, before the invention of Besse who stored metal for the purpose of use. Bessemerizing practice by the indirect proc mer, as well as the foundry practice and the ess after such invention and before the grant of the Jones patent; (b) the direct process of making steel from blast-furnace metal prior to the grant of the Jones patent.


Aside from this, it seems to me the concession that the placing of molten metal in a reservoir for use as required was well known at the time the Jones patent was issued is inconsistent with the ruling now made, that the Jones patent validly em. braced the retention in a reservoir of a mass

of such metal, now described by the court as a dominant pool. The elementary import of the right to reservoir, as applied, not only to molten metal, but other fluids, is the

Foundry and Indirect Bessemer Practice Be

fore the Grant of the Jones Patent.

1. The Whitney-Car-Wheel Practice: At


the Whitney car-wheel works in Philadelphia, I think this is a good way of mixing iron. commencing, in 1847, remelted pig metal See alloys." from several cupola furnaces was tapped at 3. The Altoong Practice: At the Altoona intervals into a large reservoir ladle having wheel works of the Pennsylvania railroad, a capacity of from twelve to fifteen tons. from 1871, the cupola metal was designedly From this the molten metal was poured into stored and mixed. The early reservoir ladle, charging ladles having a capacity of but of seven tons' capacity, received the metal 600 pounds. A considerable residue was al- from two cupolas, and was thus described: ways maintained in the reservoir ladle. The “A. The ladle turns on two trunnions, and principal purpose, as testified to by wit has chains leading from these trunnions nesses having personal knowledge of the sub- down to the hydraulic cylinder shown on ject, was to secure, as a consequence of the the drawing, one chain being wound in one mixing resulting from the reservoiring, the direction on one trunnion and other being production of a practically uniform product. wound in the other direction on the other Excerpts from the testimony of John R. trunnion, and the two chains being connected Whitney contain a clear statement on the at opposite ends of the piston rod.” subject:

In describing the regular way of working "When the [large] ladle was nearly full each day the witness said (italics not in we began to pour from it into the smaller original): ladles, each one of which held enough for "In the first place each cupola is charged one wheel. If it was an ordinary size wheel with about forty tons of metal. We charged it held enough for one wheel, and if the about forty tons in each cupola; then after wheels were smaller ones it held enough for we have this done we put the blast on and two or three. As that drew the molten iron begin to melt, and as soon as ever the bed from the ladle, and the iron continued to in the cupola is filled up with molten metal melt, the ladle was constantly being filled we tap it out into the receiving ladle or from the cupola, and it was kept full until reservoir, which fills the reservoir about all the iron charged in the three cupolas was one-half full, then we stop the cupolas up melted and the bottoms dropped. Then the again until the iron raises to the eyeholes, iron was continued to be poured out of the then they are tapped again, and this seclarge ladle until it was all used, those two ond tap generally fills the reservoir; then methods making the uniform mixture; that after the reservoir is full, we begin to pour is, we mixed it in a solid state, first by our the metal out into smaller ladles, then send charges and then in the molten state in the it around to the molders for pouring into large ladle.

the wheel molds. "As the mixture (of selected iron] was

“The custom was to empty the receiving charged into each cupola, as I have stated, ladle about one half; then hold the remain. it was made up of irons from various furder of iron in the reservoir until the cupolas naces, some iron having one quality and were ready to be tapped again; and after some another. As it is melted in each cu- the reservoir is full we start and pour out pola, it did not all melt at the same time, into the smaller ladles again. The receiving and if we had drawn it directly from the ladle at all times is kept about one-half fuli, cupola into the small ladle from which we and it is this full when we tap the metal poured the wheels, one wheel might have into it from the cupola.” been poured out of very hard iron, another wheel out of very soft iron, and so every

In the London Engineering for 1877, deshade between. There would have been no scribing the practice pursued at Altoona, uniformity in our work. But by taking it when a ten-ton receiving ladle was used, it from the three cupolas, all melting the same

was said: “It was found advisable to emcharges of iron, and collecting them in a ploy a ladle of so large a capacity, because molten state, the inequalities of melting by doing so a more complete mixture of the were all overcome and a uniform product different irons is effected than would be the produced."

case if a smaller vessel were employed." 2. The Wheeling Foundry Practice: Kirk

And the methods of using cupola metal on Founding of Metals, 1875, thus described early applied to making Bessemer steel by

for foundry purposes above described were foundry practice (italics not in original): the indirect process. The following excerpt

“In melting iron I should recommend from the testimony of a witness clearly melting it hot, and as fast as possible. A

states the subject: quantity of molten iron should be kept in the cupola or in a large ladle, so as to give and made his first conversion in 1865, in

“A. L. Holley, who built the Troy works, the different brands of iron a chance to mix. troduced into this original plant tipping acIn most all the foundries at Wheeling, West cumulating ladle resting on scales. This Virginia, the cupolas are never stopped ladle was patented by Bessemer in 1869, from the time the blast is put on until the English patent 566, alluded to in the prebottom is dropped. A large ladle is set on vious answer, but apparently trestles in front of the cupola, in such a American invention. It was introduced in manner that the iron can run into it from some form or other in all the Amer. the cupola and be poured out into theican works, and was used almost always in smaller ladles at the same time. The iron duplicate, holding about two heats each, or is all run out of the cupola as fast as it many cupola tappings. In the last works is melted, and is mixed in a large ladle. I built in St. Louis by Holley, in 1876, there

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were three of these ladles. In all American | the two, cupolas, would be averaged with works these ladles were turning or tipping the better adapted metal for converting from a ladles, and were placed on scales to weigh the others." the converter charges."

In 1877, describing the Vulcan works, a plant designed and erected under Mr. Holley's supervision, that gentleman said (London Engineering, vol. 23, 1877):

"The cupola ladles ff facilitate the distribution of metal to the vessels. They form reservoirs which make the smelting department and the converting department independent of each other, within limits. This advantage was not appreciated fully until the large productions of the last few years were attempted. Should any delay occur in casting, in preparing a vessel, or from any cause, the melting department keeps right on, for those three ladles will hold six vessel charges, which may be stored and converted when the converting department is ready for them. Cast-iron will 'live' in these thickly lined ladles, when covered with charcoal, for several hours. But it is necessary to put these ladles upon weighing machines, so that either uniform vessel charges may be run out, or so that spiegel charges may be proportioned to such charges

Speaking of the beneficial effects resulting from the use of the accumulating ladle at the works of the defendant, another witness (Cabot) said:

"The mixing of cupola metal at Cambria was accomplished by the tapping of a number of cupola furnaces into one large receiv ing ladle, from which converter charges were poured off, and the supply in this ladle again increased by further tapping. The practice at the Bellaire steel works was similar to that. The purpose was to obtain a supply of metal for the converters to equalize the different streams of metal from the different cupolas, and that was its effect. It accomplished that."

Yet another witness (Hunt) declared "it was recognized as one of the great features of the intermediate ladle, that it made the work so much more uniform in results from mixture or evening up of the various grades of pig iron used.'

as are run out."

These ladles were variously named. Holley called them cupola ladles, interposed ladles, and reservoirs. Hunt described them as "intermediate accumulating ladles."

A witness thus testified respecting the extent of use in this country of the receiving ladle as follows:

What distinction can be drawn between these methods and the patent as now construed? This court and the circuit court did put aside the Whitney method on the ground that it provided for obtaining absolute uniformity of product, while the Jones method was held to provide simply for avoidance of abrupt variations. While it is clear that a method which had for its purpose merely the prevention of abrupt variations would not necessarily include one for the obtaining of a uniform product, how a method of reservoiring molten metal as such metal is produced in the furnace and drawing it off from the reservoir for use, which produced uniformity of product as the result of the reservoiring, can be said not to have embraced the prevention of abrupt variations, is to my mind absolutely unthinkable, since the greater must necessarily include the lesser. For, of course, as there cannot be abrupt variations in the constitu ent elements of a molten metal which is uniform, it must follow that a process of reservoiring which in the continuous operation of a plant will obtain a uniform metal must necessarily exclude abrupt variations in the quality of the metal.

The court now, in addition, disposes, not only of the Whitney practice, but of the others to which reference has just been made, by certain general considerations which it is held applies to them all. These considerations are, first, an assertion that although all such practices included reservoiring and the incidental mixing arising therefrom, none of them contemplated mixing as a necessary and inherent attribute, and none of them embraced the retention in the reservoir of a considerable mass of

"Early American steel works, commencing with Troy in 1864, Pennsylvania in 1867, Cleveland in 1868, Cambria and Union in 1871, North Chicago in 1872, Joliet and Bethlehem in 1873, Edgar Thomson and Lackawanna in 1875, and Vulcan in 1876, used receiving ladles, two in number, holding about two heats each, with the exception of Bethlehem, which used a single ladle on a car to mix taps from four cupolas, and Vulcan, which used three receiving ladles, holding two heats each. These ladles were used for storing and measuring the heats." It is shown that from 1879 to 1888 the capacity of the accumulating ladle used at the works of the defendant was 28,000 pounds, and the converter charge 15,500 pounds, leaving 12,500 pounds in the ladle after a charge was supplied to the converter. The cupola taps of from 4,000 to 6,000 pounds passed into and filled such ladle. Describing the mode of use of the ladle, Price, a witness, said:

"It was the custom to leave in the ladle an amount of metal equal to the difference between the converter charge and the full ladle capacity. This ladle was again filled to its full capacity by retapping the cupolas.

"The metal from the several cupolas nec-metal, a dominant pool, as a part of the essarily varied from time to time consid- process of reservoiring; and, second, as the erably, both in chemical and physical condi- practices in question related to molten metal tions; at times the metal being such from drawn from cupolas, therefore they did not one or two of the cupolas that in themselves establish that reservoiring and mixing were they would be unfit for converter use. But known to the art so far as concerns the by the means which was afforded by the in- molten metal drawn directly from blast fur termediate ladle the metal from this one, or 'naces. 22 S. C.-46.

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