*464 The first proposition, it is submitted, is absolutely in conflict with the express and uncontroverted proof in the record, as manifested by the references which I have already made. Let me recur to the practices under consideration to show that this is the case. Take the Whitney practice as testified to by Whitney. After saying that withdrawals were not made from the reservoir until "it was nearly full," and describing the drawing off of the molten metal from the reservoir, he said: "And [as] the iron continued to melt [in the cupolas] the ladle was constantly being filled from the cupolas, and it was kept full until all the iron charged in the three cupolas was melted and the bottoms dropped." The witness thus clearly showed, not only the constant retention of molten metal in the reservoir, but that such retention was recognized in the practice as essential to secure "desired uniformity of molten metal." I cannot see how there can be doubt on this subject, in view of the fact that the witness added: "If we had drawn it [the molten metal] directly from the cupola into the smaller ladles from which we pour the wheels, one wheel might have been poured out of very hard iron, and another wheel out of very soft iron, and so every shade between. There would have been no uniformity in our work. But by taking it from the three cupolas, all melting the same charges of iron, and collecting them in a molten state, the inequalities of melting were all overcome and a uniform product produced." Take the wheel foundry practice as portrayed in Kirk's publication. The statement is made that "a quantity of molten iron should be kept in the cupola, or in a large ladle, so as to give the different brands of iron a chance to mix." Again: "The iron is all run out of the cupola as fast as it is melted, and is mixed in a large ladle." The publication thus clearly pointed out the advisability of retaining a residuum in the cupola or in the reservoir, for the purpose of better mixing. Recurring to the Altoona practice, doubt on the subject seems to me to be in reason impossible. It is not gainsaid that such practice embraced reservoiring and mixing. It cannot, it is submitted, be affirmed that it did not embrace the retaining in the reservoir of a large residuum of metal for the express and necessary purpose of making the mixing more perfect, if the proof as to the practice pursued is not wholly disregarded. What was that practice? When the metal in the cupolas began to melt, it was drawn off into the reservoir until the reservoir was half full; then the withdrawals from the cupolas were stopped. But the metal in the half-full reservoir was not, however, then made use of. Why was it not so used, although already in the reservoir? The answer is because it was deemed best, in order to obtain beneficial results from mixing, to hold the half-full reservoir for a subsequent tapping therein from the furnace, of a quantity of molten metal sufficient to fill the reservoir. Only when the reservoir was thus filled did they commence to draw the metal therefrom, and when by such use the quantity in the reservoir was reduced to about one half, then the drawing off was stopped, so as to retain about the one half until there was a further replenishing from the furnace, and thus the operation continued. How, by a mere affirmation, it can be held that the process which has just been described did not contemplate the constant retention of a considerable residuum in the reservoir is to my mind inexplicable. Let me quote again from the record the uncontradicted testimony as to the practice in question: "The custom was to empty the receiving ladle about one half; then hold the remainder of iron in the reservior until the cupolas were ready to be tapped again; and after the reservoir is full we start and pour out into the smaller ladles again. The receiving ladle at all times is kept about one-half full, and it is this full when we tap the metal into it from the cupola." *The irresistible conclusion thus arising from this proof is, it seems to me, rendered if possible clearer, when it is recalled that as early as 1877 the London Engineering, in a reference to this practice, declared: "It was found advisable to employ a ladle of so large a capacity, because by doing so a more complete mixture of the different irons is effected than would be the case if a smaller vessel were employed." And what has just been said applies equally to the practice of making Bessemer steel from cupola furnaces. That the excerpts which I have given on this subject clearly show that mixing by the use of a residue was the result of the employment of the accumulating ladle, and a result that was well known and intended, it seems to me cannot be gainsaid. How the Jones method, as construed, can be declared to have been novel-because in cupola metal there was no variation requiring mixing-in face of the fact that the very patent which is sustained, in various forms of expression, expressly declares that such variation exists, is not by me comprehended. Besides, the proposition involves an unsound deduction, since it in effect not only disregards the fact that the practices in question were availed of with the avowed purpose of correcting the inequalities found to exist in cupola metal, but also the erroneous assumption that there could be patentable novelty in merely applying to blast fur naces the well-known practices as to cupola metal. It may well be conceded, without affecting the case, that the variation is greater in metal drawn from blast furnaces than in that drawn from cupolas, but this mere difference in the degree of variations between the two affords no ground for construing the Jones patent in such a way as to cause it to cover the well-known prior methods. Nor does the example given in the opinion of the court for the purpose of illustrating the difference which is found to exist be tween the practices to which I have referred and the Jones patent, as now construed, en 465 ⚫467 *466 able my mind to discover the difference. The court says (italics mine): furnaces was known. Thus Kohn, in the Journal of the Iron and Steel Institute, 1871, speaking of the practice at TerreNoire, in France, said: sorted to on the continent of Europe, and there is testimony in the record giving rise "Let us imagine a reservoir containing, to the inference that the greater uniformity say, three quarts, and filled with one quart of the ores used in the blast furnaces on each of three liquids of different constitu- the continent caused such processes to be ent parts, and withdrawn for further treat-there at once quite successful. However, it ment at the rate of one or two quarts at a may not be doubted that on the continent time. Necessarily there would be some in- the use of a reservoir or accumulating ladle cidental mixing, but it would occur at once sometimes obtained, and the advantages that the main object of the reservoir was a which it afforded of bringing about a desir retention of a suflicient quantity of the mix-able mixture of the metals from several ture to supply the receptacle for further treatment, and if no necessity existed for a longer retention of the liquid in the reservoir, it could be very quickly emptied by two discharges into the receiving vessel. "The iron is first run into a ladle, as exNow, let us substitute for this reservoir a plained by Mr. Menelaus, and so taken to cask of, say, sixty quarts, into which the the converter. The ladle is brought to the liquids of different constituent parts are back of one furnace, and half filled; it is poured in at one end from a multitude of then run to the next furnace and filled up. receptacles, and discharged at the other end In this way the Terre-Noire Company alafter remaining a certain time in the cask, ways obtain a mixture of the metals, and and that this cask could not be tilted so far therefore the greatest regularity is secured but what a quantity of liquid would be left through the rest of the work. The furnaces within it amounting, say, to half its capac-are kept in regular working order, and by ity. Now, if there be no distinction between carefully managing the charges of the blast these two operations there would be little furnaces, and watching them as much as left to the Jones process, the very vitality of possible, the practical result is that there which consists in the size of the cask rela-is no inconvenience as regards the furnaces tive to the ladles and the mixing of the various liquids poured into it before they are withdrawn." themselves in tapping frequently. The same thing is done at Mr. Schneider's place at Creuzot, but he believed they do not there go so far as to mix the iron." In this country, though the manufacture of Bessemer steel was commenced in the early sixties, and in one or two of the early experimental plants a brief use was made of direct metal, the indirect process was in general use until the year 1882, when the first large plant equipped for direct use of blast-furnace metal began operations at the new South Chicago works of the Illinois Steel Company, and later in the same year the Edgar Thomson works (the Carnegie Company), with five new furnaces, also commenced such work. These plants were still producing steel by the direct process, with the use of the accumulating ladle, when the Jones patent was granted in 1889, and it was not until the year 1892 that a large storage tank was installed at the South Chicago works. In the first place, this example fails to notice the fact that in the accumulating In England the direct process was not ladle the metal was received from several made use of until about 1877, and it is in some instances as many as four or five-shown that this largely resulted from the cupolas; and that in practice a residue was fact that the Bessemer plants in the early constantly maintained, and for the purpose use of the process were not connected with of mixing, and that these ladles could not blast furnaces. be drained of metal unless there was an intention to do so. The only distinction afforded by the example is that resulting from the difference in sizes of the two supposed receptacles in which the mixing was accomplished. But this would reduce the patentable novelty in the Jones process to the size of the reservoir. Indeed, it is so expressly stated, since in the opinion it is declared that "there would be little left to the Jones process, the very vitality of which consists In the size of the cask relative to the ladles and the mixing of the various liquids passed into it before they are withdrawn." The mixing having been disposed of by what I have already said, it follows that the "very vitality" of the patent is found to be the size of the cask relative to the ladles, which in reason is a direct abandonment of the whole theory of a dominant pool previously A number of patents having relation to expounded as the source of vitality in the the making of steel by the Bessemer direct patent. But the size of the reservoir- process were from time to time granted becalled by the court a cask-relative to the fore the Jones patent was issued, and I capacity of the plant is clearly shown not shall now notice the most important of such to have been novel by what has been previ-inventions, as also some other publications ously said, and will be further demonstrated embodied in the literature of the art. beyond peradventure by the consideration which it is now proposed to give to In the British patent to Deighton of 1873 the purpose of the inventor, among others, was declared in the specifications to be to The Manufacture of Bessemer Steel by the keep a steel-works plant or apparatus in Direct Process. The use of the direct process for Bessemerizing, it would seem, was at once re nearly uninterrupted work, thus very considerably increasing the production of such plant. It was said: "Instead of manufacturing Bessemer iron *469 or steel from pig iron which has to be melt-melting in a cupola or storing it in a large ed in cupolas, my invention also consists in reservoir,-A. L. Holley said (italics mine): taking the molten metal directly from the "It has not yet been practicable to work blast furnace to the converter, in which case the blast furnace with sufficient regularity I prefer to arrange the Bessemer plant in to realize approximately the theoretical ada line at a right angle to a row of two or vantages of the direct process. more blast furnaces, and place a vessel to receive the molten metal tapped from two or more blast furnaces to get a better aver age of metal which will be more suitable for making Bessemer steel or metal of uniform quality, the vessel or receiver being placed on a weighing machine so that any required weight may be drawn or tapped from it and charged into the converter. "Fourth. The obvious remedy is to mix a number of blast-furnace charges, so as to reduce the irregularity to a minimum. Two systems of doing this are on the eve of trial: The one is simply mixing so few charges in a tank that the metal will be drawn out before it chills; the other is to store a larger number of charges in a heated tank, that is to say, in an immense openhearth furnace." The first of these two systems of mixing would seem to be that embodied in the following portion of Mr. Holley's description of the West Cumberland practice: "In order to get a more uniform metal, Mr. Snelus is about trying the experiment of placing a twenty-ton ladle on a hydraulic lift at the 'A' pit, so arranged as to store, mix, and pour, say, three six-ton to seventon blast-furnace taps, or to mix blast furnace and cupola metal. No doubt this body of metal will 'live' if the ladle is thickly lined and well covered. Mr. Snelus has another object also: tapping half or a third of a vessel heat out of the blast furnace— in other words, tapping so often-wears out the tap hole more rapidly; slag gets into the walls and weakens them. It is prefer able in every way, as blast-furnace men well understand, to tap a full hearth. At the same time improvements in working the fur The apparatus was then described in detail, and consisted of blast furnaces, arranged in a line, with channels from each furnace to a common reservoir or mixer, and with a connection from the mixer to a converter, so that the molten metal in running from the blast furnaces might go into the reservoir and be mixed, and might be drawn off as desired to the converter. It was stated that the receiving vessel "is placed low enough to give fall for the molten metal to flow from the blast furnaces to this receiver m, which forms a receptacle for mixing the molten metal from two or more of the smelting furnaces. From the receiver m the mixed molten metal is tapped and flows down the swivel through n into the converter a. By placing the vessel m on a weighing machine it can be readily ascertained when the exact quantity required has been tapped from it into the converter." In 1885, a few years prior to the grant of the Jones patent, two United States pat-nace are gradually developing. More care ents were issued to James P. Witherow (1) for apparatus for the manufacture of iron and steel; and (2) steel-plant appliance, which patent showed a blast furnace, an intermediate storage vessel of large size, and a converter. In brief, the purpose of the Witherow reservoir apparatus was to receive and store the molten metal for the purpose of preventing the detention incident to the necessity of discharging the contents of the blast furnaces when there is no converter ready to receive it. The advantages of the large storage receptacle was thus stated in the specification of one of the patents: ""The metal is usually tapped from a blast furnace once in every six hours, and the quantity thus cast is many times in excess of the charge of a converter. is taken as to the selection of ores, the size of ore and limestone, the distribution of materials in the furnace, the temperature of the blast, and all elements of uniformity. Uniform results in the Bessemer department can hardly be expected unless a number of blast-furnace charges are mixed. This would seem to be the theoretical solution of the problem." The second of the two systems of mixing is undoubtedly the one then being erected at Moss Bay, England, viz., a sixty-ton reverberatory coal-fired furnace or two forty ton furnaces. The ladles of blast-furnace metal were to be "tapped out into the large reverberatory furnace," in which "it is the tons of iron from all the blast furnaces." intention to store and keep hot some sixty This method, for some reason not stated, The charge of a converter is from one to five perhaps an economical one, was not successtons, and in the case of a blast furnace usu-ful. Mr. Holley, in the article just noticed, ally runs from ten to fifty tons. The time between charges of the converter is usually twenty minutes and upward, and the metal from the furnace must be kept in condition to be tapped from time to time into the converter as needed.'" The evidence establishes that the Deighton and Witherow reservoirs were each of a capacity of 100 tons. referring to the arrangements in connection with the use of this "large furnace," said: "The complex manipulations due to the arrangement described seem likely to take unnecessary amount of time and labor." After reviewing the practice in the various English and continental steel works using direct metal. Mr. Holley summed up his conclusions, and recommended the AmerCommenting, in June, 1877, upon the ican works to continue for the present to merits and demerits of the use, then just select and remelt the pig metal, and confine commenced in England, of direct metal,- their efforts for some time "to the prelimthat is, the conversion of molten metal di-inary department of the direct process,-to rect from the blast furnace, without re-increasing our uniformity of blast-furnace ⚫472 working and product." We excerpt the following passages from the conclusions contained in the report: I was a well-known expedient to cover a ladle or other receptacle for molten metal when the metal was required to be retained longer "Fourth. But if the storage of a large than the customary time. The inappositequantity of iron in a reverberatory furnace ness of the suggestion that the Deighton or other reservoir should prove successful, patent ought not to be given any weight as then a few blast furnaces making even an showing the state of the art, because the irregular product, and, if necessary, working patentee allowed the patent to lapse for the in connection with cupolas, would largely nonpayment of fees, cannot be better illuseconomize the Bessemer manufacture. trated than by this case, when it is recalled "In fact, this mixing of irregular irons that the patent to Mushet, which made Beson a very large scale, thus avoiding the ex-semerizing commercially practicable, was alpensive niceties of ore selection and the ne-lowed to lapse because the Patent Office fees cessity of many furnaces, is the theroetical were not paid. key to the situation. When the way to its The demonstration of want of novelty successful adoption is demonstrated, the di- in the patent as construed, which arises from rect process will undoubtedly have great ad- the previous considerations, entirely disvantages, even over the present practice on poses of the case, as it is, as already obthe continent, which employs manganiferous served, conceded that, unless the patent ores. But until this large-scale mixing is means what it is now held to mean, there developed it should not appear that the use was no infringement by the defendant. It of our comparatively irregular blast-furnace is to me equally clear, however, that even and part cupola metal can result in any sub-if the state of the art be, arguendo, put out stantial saving. of view, the patent cannot be held to signify "But the mixing problem is not such a what it is now decided to mean (a) without difficult one. A small amount of flame repudiating the true meaning of the patent, spread over a large surface of metal should which is properly deducible from the procertainly keep it hot for a long time, seeing ceedings in the Patent Office, that is, the filethat the metal will keep hot in a ladle ex-wrapper and contents, and without refusing posed to air for an hour or more. And to give effect to the express declarations and should there be any trouble about stopping admissions of the patentee (Jones) as to the the tap hole in a large storing furnace, it would not be a very difficult or expensive matter (considering the Pernot revolving hearth experience) to tip the whole hearth to pour a charge." significance of the patent, which is also shown by the proceedings in question; and (b) without misconceiving and misconstruing the patent. Let me briefly demonstrate these propositions. Without stopping to comment in detail As I have said at the outset, the applicaupon all the matters just referred to, there tion for the patent in suit when first made can be no question that they demonstrate was rejected by the Patent Office, on the that if the vitality of the Jones patent de-ground of the prior state of the art, as evipends upon the size of the reservoir, it was denced by the Witherow patents and the clearly anticipated. They also further es- Kirk publication. An amended application tablish that the advisability of the use of was thereupon filed, which beyond all quesa large reservoir for the purposes of storage tion eliminated from the patent all claim and mixing was well known; and that it to an exclusive right to reservoir or store was deemed to be an obvious and desirable the molten metal. When this amendment expedient is also apparent. was presented to the Patent Office, counsel It is not denied that the Deighton and for the applicant submitted a written arguWitherow patents each provided for a reser-ment to demonstrate the patentability of the voir, the former (Deighton) laying stress method covered by the amended application, upon the advantages resulting from the in which no reference whatever was made to mixing in such reservoir. Both patents, it the importance of a residue, whether of seems to me, in effect contemplating as they small or considerable size, but the purpose did the continuous operation of the plant, of the inventor was thus declared (italics and, in view of the relative capacities of the mine) "to have a receptacle capable of holdfurnace or furnaces, the reservoir and the ing metal in a molten condition, into which converters, necessarily embraced the pres- metal, it may be, from several blast fur ence in the reservoir of a considerable resid-naces, is run from time to time, and from uum, without which residue the proposed which metal is drawn for treatment in the continuity was impossible. As it is to me converters, or otherwise, as required. This apparent, I do not stop to refer to the tes-continuous pouring into and drawing out of timony showing that this must necessarily a common receptacle produces such a mixbe the case. The argument that the Deigh-ture of the charges as results in an uniform ton reservoir had no cover, and therefore it average quality of metal, whether treated is not the Jones process, ignores the fact in the converters or used for casting without that Jones in his process patent does not such treatment, as is very desirable, but has provide for the operation of his method in hitherto been found unattainable." But the a covered receptacle, but, on the contrary, amended application was rejected, and the in the specifications of that patent, it is examiner-evidently having in mind the declared that the process may be carried on statement in the argument of counsel above in a charging ladle, an uncovered receptacle. referred to-called the attention of the apFurther, it is to be borne in mind that the plicant to the fact that the continual pourrecord overwhelmingly establishes that it ing into and drawing out of the molten metal $473 to produce a mixture was anticipated by the Kirk publication. The examiner said (italics mine): "The process, as now claimed, seems to be fully met by the description in Kirk's Metal Founding, heretofore referred to, which states that the metal is run continuously from the cupola and mixed in the ladle, from which it is tapped into the smaller ladle. See also the additional references of British patents No. 859, Broman, March 23, 1866, page 5, lines 25-35, and No. 2382, Stewart, May 10, 1883, page 5, lines 9 and this, and this only: The selection of separate portions of molten metal, pouring the same into a reservoir, mixing such aggre gated portions of molten metal thoroughly until it, the commingled metal, became uniform, so that the equalized metal might be used, not alone in the making of steel in a converter, but in any other process of making steel, in a foundry, or in any other mode where a uniform product was desired. Having thus provided for equalizing the contents of the reservoir when filled with selected metal and mixing had been accomplished, the patent contemplated that this equalized When it is borne in mind that the Kirk molten metal present in the reservoir should publication thus referred to provided ex- be drawn off for any desirable purpose down pressly for a continuous inflowing and out- to an undetermined residue, so that when a drawing of the metal, and besides expressly fresh supply of selected metal was charged said "a quantity of molten metal should be into the reservoir the metal thus newly supkept so as to give the different plied might be mixed with the residuum, brands of iron a chance to mix," the conclu- and thus not only a further supply of equalsion cannot by me be escaped that the ex-ized metal might be obtained, but also, as aminer pointed out to Jones that the conception of a continuous inflow and outflow, and the keeping of a residue for the purpose of mixing, was not patentable. 10." The presumption cannot be indulged in that the amendment was not intended to obviate the objection on account of which the Patent Office had rejected the application, and, moreover, it cannot be assumed that the Patent Office issued the patent for a method which it declared was not patentable. But now the patent is construed by the court as covering the continuous flowing into and withdrawal from a reservoir of molten metal, and as alone referring to the prevention of abrupt variations in the metal drawn from the reservoir for use in a converter, while Jones himself declared to the Patent Office that the patent as amended related to metal drawn (from a reservoir) for treatment in a converter, or otherwise, as required. Besides, it was expressly stated that what the patent contemplated was the production of a uniform quality of metal, intended for further treatment in the converters, or to be used for casting without such treatment. It is submitted that this demonstrates that the construction now given by the court to the patent is directly repugnant to the meaning which Jones affixed to it, and besides is in conflict with the ruling of the Patent Office, in which Jones acquiesced, and upon which the patent was issued; and therefore that the construction which the patent now receives amounts, it seems to me, to a grant by judicial decision of a new and different patent from that which the Patent Office allowed. Conclusive as is the view just stated, it is made, if possible,*more so if the correct construction of the patent be ascertained. This it is proposed to demonstrate by an analysis of the patent as originally applied for, by a consideration of the amendments made to it. and by its text in its final form. Considering these matters, it will, I think, appear that the patent was not, as now held to be, solely one for the prevention of abrupt variations in the metal drawn from the receptacle for use in a converter. On the contrary, the true purport of the patent was a result, abrupt variations between the freshly equalized metal and that of the preceding batch discharged from the reservoir would be avoided. To demonstrate the correctness of this construction, which, as already shown, was undoubtedly the view taken by the Patent Office, let me come to consider the application for the patent, the amendments, and the patent as granted. The application, as originally filed, contained a statement of the primary object of the invention, which is excerpted in the mar gin.t This was followed by a statement of the "The primary object of the invention is to provide means for insuring uniformity in the product of a Bessemer steel works or similar plant, in which the metal from more than one(subsequently amended to read 'one or more') blast furnaces is employed to charge the converters. The product of the different furnaces, or of the same furnace at different times, varies in quality, the variation depending on the kind of ore employed, and on many other conditions well known to those skilled in the art, so that when the converters are charged at one. time with the output from one furnace, and at another time with the output from another furnace or furnaces, the manufactured steel lacks. uniformity in grade. To avoid this I employ suitably constructed reservoirs or vessels, into which the molten metal from the blast furnaces. is put, the vessels being of proper capacity to hold a considerable charge of metal from a single furnace, or from a number of furnaces, and being adapted to retain the metal in a molten state for sufficient time to enable the different charges to mix and become homogeneous. The advantage which I thus obtain in securing uniformity and homogeneity in the total product will be readily understood by those familiar with the operations of a steel works and the frequent loss which is caused by the lack of such uniformity. Such apparatus possesses also an additional advantage in that it makes it possible to dispense with cupola furnaces for remelting the pigs preparatory to charging the converters. The metal may be tapped from the blast furnaces into ladles or trucks, carried to and discharged into the mixing reservoir or vessel, and there retained in.. a molten state until sufficient metal has been. accumulated to charge the converters." *475 |