parts, all the charges of the converter from time to time will be substantially uniform, and the products of all will be homogeneous."

product of the refining process in the converters or otherwise in like manner lacks uniformity in these elements, and therefore often causes great inconvenience and loss, making it impossible to manufacture all the "To this end my invention may be pracarticles of a single order of homogeneous tised with a variety of forms of apparatus, composition. Especially is this so in the -for example, by merely receiving in a process of refining crude iron taken from charging ladle a number of small portions the smelting furnace and charged directly of metal taken from several ladles or receiv into the converter without remelting in a ing vessels containing crude metal obtained cupola, and, although such direct process at different times or from different furpossesses many economic advantages, it has naces, the mixing being performed merely[405] on this account been little practised." by the act of pouring into the charging ia"For the purpose of avoiding the practi-dle, and other like means may be employed. cal evils above stated, I use in the refining process a charge composed, not merely of metal taken at one time from the smelting furnace, but of a number of parts taken from different smelting furnaces, or from the same furnace at different casts, or at different periods of the same cast, and subject the metal before its final refining to a process of mixing, whereby its particles are diffused or mingled thoroughly among each other, and the entire charge is practically homogeneous in composition, representing in each part the average of the unequally diffused and segregated elements of silicon and sulphur originally contained in each of the several parts or charges. By proceeding in this way, not only is each charge for the refining furnace or converter homogeneous in itself, but, as it represents an average of a variety of uniform constituent

(The clause in italics was subsequently disclaimed.) I prefer, however, to employ the apparatus shown in the accompanying drawings, and have made it the subject of a separate patent application, serial No. 289,673, and, without intending to limit the invention to the use of that specific apparatus, I shall describe it particularly, so that others skilled in the art may intelligently employ the same."

"My invention is not limited to its use in connection with converters, since similar advantages may be obtained by casting the metal from the mixing vessel into pigs for use in converters, puddling furnaces, or for any other uses to which pig iron may be put in the art." (This paragraph subsequently disclaimed.)

(The apparatus is represented by the drawing here inserted.)

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"Referring now to the drawings, 2 repre- tents of the vessel and to prevent chilling sents the reservoir before mentioned. It thereof. The vessel is strongly braced and consists of a covered hollow vessel having supported by braces and tie-rods, and may an outer casing 3, of iron or steel, which is suitably braced and strengthened by interior beams and tie-rols, as shown in the drawings. The whole exterior of the vessel is lined with fire brick or other refractory [406]lining, which should be of sufficient *thickness to retain the heat of the molten con

be of any convenient size, holding, say, 100 tons of metal (more or less), and its shape is preferably such as shown in the drawings, being rectangular, or nearly so, in cross section and an irregular trapezium in longitudinal section, one end being considerably deeper than the other. At the top

of the deeper end, which I call the 'rear' end, is a hopper 5, into which the molten metal employed in charging the vessel is poured, and at the front end is a discharge spout 6, which is so located that the bottom of the spout is some distance above the bottom of the vessel,-say 2 feet in a hundred ton tank, and more or less, according to the capacity of the vessel, the purpose of which is that when the metal is poured out of the spout a considerable quantity may always be left remaining and unpoured, and that whenever the vessel is replenished there may already be contained in it a body of molten metal with which the fresh addition may mix. I thus secure, as much as possible, uniformity in the character of the inetal which is fed to and discharged from the tank, and cause the fluctuations in quality of the successive tappings to be very gradual."

"For convenient use of the apparatus I have found it best to so arrange it that it is adapted to receive its charges of metals from cars or bogies 7, which run on an elevated track at about the level of the normal position of the hopper 5, and to discharge its contents into similar cars or bogies 15 on a track below the spout 6. In order to facilitate the charging and discharging of the metal, the vessel is set on journals or bearings 8, which have their bearings in suitable pedestals 9, and its rear end is provided with depending rack bars 10, which are pivotally connected with the bottom of the mixing vessel 2, and are in gear with pinions 11, the shaft of which is connected by gearings 12 with the driving mechanism of a suitable engine. The pinions are held in gear with the rack bars by idler wheels or rollers 13. As the journals or bearings 8 are located on a transverse line somewhat 407]in advance of the center of gravity of the vessel, it tends by its own weight to tilt backward into the position shown in Fig. 1, but may be restored to a level position by driving the pinions 11, and thus raising the rack bars 10 until the front part of the bottom of the vessel comes in contact with a rest or stop 14."

by agitation of the vessel on its trunnions, so as to cause the stirring or shaking of its liquid contents. The mixing chamber being deeper at its rear than at the front end, as before described, and its normal position, when not discharging metal for the purpose of casting, being with the bottom inclined upward toward the front or discharging end, and the bottom of the spout being situ ate above the bottom of the vessel, at its forward end, it is adapted to receive and hold a large quantity of molten metal without its surface rising high enough to enter the discharge spout.'

"The discharge spout 6 is furnished with a movable cover operated by a weighted lever 16, which, when closed, serves to exclude the outside air and prevent a draft of air through the vessel and the consequent rapid cooling of the molten contents. If care is exercised in keeping the cover closed, the metal can be kept in a fluid condition for a long time, the heat being kept up by repeated fresh charges of molten metal, and, if necessary or found desirable, by burning gas introduced by a pipe or pipes into its interior."

*"After the vessel is properly charged, the [408) metal is drawn off into the cars 15 from time to time, as it is needed, by opening the door or cover 16 of the spout 6 and driving the engine 12 so as to elevate the rear end of the vessel and tilt it forward, and thus to discharge any required amount of its contents in the manner before explained into the cars 15, which are transported to the converters, or the metal is cast into pigs or otherwise used. (Italics disclaimed.) The tilting of the vessel does not, however, drain off all the contents thereof, a portion being prevented from escaping by reason of the elevated position of the spout 6, and as the vessel is replenished from time to time each new charge mixes with parts of previous charges remaining in the vessel, by which means any sudden variations in the quality of the metal supplied to the converter is avoided. Instead of discharging the metal into the cars 12 and carrying it in the cars to the converters or casting house, the vessel 2 may be so situate relatively to the other parts of a furnace plant as to deliver its contents immediately to the converters or other place where it is to be utilized.”

"I find it in practice very advantageous to employ two or more mixing vessels constructed substantially as I have described. and to draw a portion of each converter charge from each of the mixing vessels. My invention is, however, not limited to the employment of two or any specific number of such vessels."

"The mode of operation of the apparatus is as follows: When the vessel is in the backwardly inclined position shown in Fig. 1, it is ready to receive a charge of metal from the car 7. Before introducing the first charge, however, the mixing vessels should be heated by internal combustion of coke or gas. and when the walls of the vessel are sufficiently hot to hold the molten metal without chilling it, it is charged repeatedly from the cars 7 with metal obtained either from a number of furnaces or at different times from a single furnace. The charges of metal introduced at different times into the vessel, though differing in quality, mix together, and when the ves- "At the top of the vessel 2 are manholes sel has received a sufficient charge its con- 17 designed to permit of access to its intetents constitute a homogeneous molten rior for the purpose of repairing or fixing mass, whose quality may not be precisely the lining. These holes are provided with the same as that of any one of its constitu- suitable covers 18 to exclude cold drafts of ent charges, but represents the average air from entering the interior. There is alquality of all the charges. If desired, the so a hole 19 at the rear end of the vessel commingling of the contents may be aided near the top, through which a rabble may

"I shall now describe, briefly, other parts of the apparatus which are desirable and important in its practical use."

be inserted for the purpose of assisting or accelerating the mixing of the molten metal, and at the other end, at the level of the bottom of the interior, there are holes 20 provided with suitable spouts to enable all the molten contents to be drawn off when it becomes necessary to do so. (See Fig. 3.) The holes 20 should be provided with suitable stoppers." [409] *"I claim

"1. In the art of refining iron directly from the smelting furnace, the process of equalizing the chemical composition of the crude metal by thoroughly commingling or mixing together the liquid-metal charge and subsequently refining the mixed and equalized charge, substantially as and for the purposes described.

"2. In the art of mixing molten metal to secure uniformity of the same in its constituent parts preparatory to further treatment, the process of introducing into a mixing receptacle successive portions of molten metal ununiform in their nonmetallic constituents (sulphur. silicon, etc.) removing portions only of the composite molten contents of the receptacle without entirely draining or emptying the same, and successively replenishing the receptacle with fresh ununiform additions, substantially as and for the purposes described."

The answer set up the invalidity of the patent by reason of an insufficient specifica: tion, anticipation, want of novelty, and abandonment; and also denied infringe


Upon a hearing upon the pleadings and proofs, the circuit court held with the plaintiff, and found that the process was patentable; that it was not anticipated; that it was of great utility and importance; and that defendant had infringed the second claim. 89 Fed. 721.

A decree having been entered for an injunction and an account of profits and damages, in accordance with this opinion, the case was carried to the court of appeals, which ordered the decree of the circuit court to be reversed, and the case remanded to that court with direction to dismiss the bill. 37 C. C. A. 593, 96 Fed. 850. Where upon plaintiff applied for and was granted this writ of certiorari.

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But, as a matter of fact, Jones has described the uses and advantages of his invention in a way which cannot fail to be understood by any skilled steel maker familiar with the art and with the difficulties to be cured.

Webster Loom Co. v. Higgins, 105 U. S. 580, 26 L. ed. 1177.

Matters of common knowledge in the

steel-making art are as if they had been set forth in detail in the specification.


Anticipations must be proved, and are not to be presumed, and every reasonable doubt must be resolved against the party setting them up.

Cantrell v. Wallick, 117 U. S. 694, 29 L. ed. 1018, 6 Sup. Ct. Rep. 970.

The policy of the law is to treat the question of invention as one of fact, and to determine it by the test of practical success.

Keystone Mfg. Co. v. Adams, 151 U. S. 145, 38 L. ed. 104, 14 Sup. Ct. Rep. 295; Vickers v. Siddell, L. R. 15 App. Cas. 502; Webster Loom Co. v. Higgins, 105 U. S. 580, 26 L. ed. 1177.

The burden of proof is strongly, upon the defendant to make out a clear and certain anticipation.

Coffin v. Ogden, 18 Wall. 120, 21 L. ed.


The mere suggestion that a given result can be obtained is not patentable, and does not anticipate a patent by another.

Seymour v. Osborne, 11 Wall. 516, 20 L. ed. 33; Graham v. Gammon, 7 Biss. 490, Fed. Cas. No. 5,668.

Mere accidental resemblance to the patent in suit, without a substantial and known performance of the functions of the patented process, would not be sufficient to establish the defense.

658, 12 Sup. Ct. Rep. 825. Topliff v. Topliff, 145 U. S. 156, 36 L. ed.

result justifies it, even when analogous to A new use may be patentable where the

the old uses.

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or process.

Topliff v. Topliff, 145 U. S. 156, 36 L. ed. 658, 12 Sup. Ct. Rep. 825; Clough v. Gilbert B. Mfg. Co. 106 U. S. 166, 27 L. ed. 134, 1 Sup. Ct. Rep. 188.

As the Jones patent was for a method, proof that the apparatus used in the prac

tice of that method was old or did not involve invention is quite irrelevant.

New Process Fermentation Co. v. Maus, 122 U. S. 413, 30 L. ed. 1193, 7 Sup. Ct. Rep. 1304.

If the alleged anticipations are very old, the presumption is that they do not contain the invention, because otherwise they would have come into use in the art to which the patent in suit relates.

Fisher v. American Pneumatic Tool Co. 18 C. C. A. 235, 38 U. S. App. 129, 71 Fed. 523.

A process is patentable when it involves chemical action, or when it involves some

other elemental action, some application of a natural law or principle.

Cochrane v. Deener, 94 U. S. 780, 24 L. ed. 139; Risdon Iron & Locomotive Works v. Medart, 158 U. S. 68, 39 L. ed. 899, 15 Sup. Ct. Rep. 745.

Or when a body is subjected to an act or series of acts whereby it is "transformed and reduced to a different state or thing," as distinguished from a merely different shape.

Cochrane v. Deener, 94 U. S. 780, 24 L. ed. 139; Mowry v. Whitney, 14 Wall. 620, 20 L. ed. 860.

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O'Reilly v. Morse, 15 How. 62, 14 L. ed 601; Hailes v. Albany Stove Co. 123 U. S 582, 31 L. ed. 284, 8 Sup. Ct. Rep. 262; Sessions v. Romadka, 145 U. S. 41, 36 L ed. 614, 12 Sup. Ct. Rep. 799; Hurlbut v. Schillinger, 130 U. S. 456, 32 L. ed. 1011, 9 Sup. Ct. Rep. 584; Schwarzwalder v. New York Filter Co. 13 C. C. A. 380, 26 U. S.

On the contrary, the mere result of a machine is unpatentable, because the "real discovery" is the machine itself. The purpose is to give to the inventor the benefit of what he has contributed to the art. Risdon Iron & Locomotive Works v. Med-App. 547, 66 Fed. 152. art, 158 U. S. 72, 39 L. ed. 901, 15 Sup. Ct. Rep. 745.

If he has contributed a new machine, the machine is what he should claim; if a method which is not merely the necessary function of a machine, the method as such should be patented.

The effect of the disclaimer in the case at bar was to cause the patent to be construed as if the disclaimed matter had never been included in it.

Dunbar v. Myers, 94 U. S. 193, 24 L. ed. 34; Schwarzwalder v. New York Filter Co. 13 C. C. A. 380, 26 U. S. App. 547, 66 Fed.

Lawther v. Hamilton, 124 U. S. 1, 31 L. 152. ed. 325, 8 Sup. Ct. Rep. 342.

It is not an objection to a process that apparatus must be used in practising it. Cochrane v. Deener, 94 U. S. 780, 24 L. ed. 139.

Mr. Thomas B. Reed also argued the cause and filed a brief for petitioner.

Messrs. Thomas B. Reed, Thomas W. Bakewell, and Thomas B. Kerr filed a reply brief for petitioner:

The patent should be construed so as to give to the inventor the benefit of his invention, if such construction is fairly warranted by the language which he has employed.

A valid process need only consist of some series of steps, and "involve" some chemical or elemental action. The patentee need not have been the first discoverer of the ele mentary principles on which his process is based. It is enough if he has applied them in a new way, or in a new order, or to effect a new result; the rule in this regard being as broad as in the case of patents for combinations of machine elements. Tilghman v. Proctor, 102 U. S. 729, 26 his invention, he should not be deprived of L. ed. 288.

Klein v. Russell, 19 Wall. 433, 22 L. ed. 116; McClain v. Ortmayer, 141 U. S. 419, 35 L. ed. 800, 12 Sup. Ct. Rep. 76.

Even if it were true that the patentee has failed to recite in detail the advantages of

the benefit of the rule of law above men

Other authorities relevant to this questioned, if it appears that those advantages tion are the following:

are recognized by those skilled in the art, and that they result necessarily from the practice of the process which he has described.

Mowry y. Whitney, 14 Wall. 620, 20 L. ed. 860; Downton v. Yeager Milling Co. 108 U. S. 466, 27 L. ed. 789, 3 Sup. Ct. Rep. 10; Eames v. Andrews, 122 U. S. 40, 30 L. ed. Roberts v. Ryer, 91 U. S. 150, 23 L. ed. 1064, 7 Sup. Ct. Rep. 1073; Crescent Brew-267; Dixon-Woods Co. v. Pfeifer, 5 C. C. A. ing Co. v. Gottfried, 128 U. S. 158, 32 L. 148, 14 U. S. App. 245, 55 Fed. 390. ed. 390, 9 Sup. Ct. Rep. 83; Roberts v. Dickey, 4 Fish. Pat. Cas. 532, Fed. Cas. No. 11,889.

Broadly considered, the question of admission of the disclaimer in evidence was not appealable.

Roemer v. Bernheim, 132 U. S. 103, sub nom. Roemer v. Neumann, 33 L. ed. 277, 10 Sup. Ct. Rep. 12.

If the right to file a disclaimer pending suit exists, it imports the right to offer the same in evidence.

Smith v. Nichols, 21 Wall. 117, 22 L. ed. 566.

So far as diligence in entering the disclaimer is concerned, the court below in effect found that the appellee was not guilty of unreasonable neglect or delay. The

The burden is upon the defendant to show that the invention is described in terms or by necessary implication in prior publica


821; Cantrell v. Wallick, 117 U. S. 689, 29 Coffin v. Ogden, 18 Wall. 120, 21 L. ed. L. ed. 1017, 6 Sup. Ct. Rep. 970.

Messrs. James I. Kay and Francis T. Chambers argued the cause, and, with Mr. Philip T. Dodge, filed a brief for respondent:

The Jones invention, whether it is a great or a little invention, must be found described in the patent, and must be defined with reasonable accuracy in the limit of its claims.

National Meter Co. v. Yonkers Water Comrs. 149 U. S. 48, 37 L. ed. 644, 13 Sup. Ct. Rep. 774; Weatherhead v. Coupe,_147 U. S. 322, 37 L ed. 188, 18 Sup. Ct. Rep.

312; McClain v. Ortmayer, 141 U. S. 419,737, 13 Sup. Ct. Rep. 902; United States 35 L. ed. 800, 12 Sup. Ct. Rep. 76; White Mitis Co. v. Carnegie Steel Co. 89 Fed. 343; v. Dunbar, 119 U. S. 47, 30 L. ed. 303. 7 United States Repair & Guaranty Co. v. Sup. Ct. Rep. 72; Fay v. Cordesman, 109 Assyrian Asphalt Co. 96 Fed. 235; Falk U. S. 408, 27 L. ed. 979, 3 Sup. Ct. Rep. Mfg. Co. v. Missouri R. Co. 43 C. C. A. 240, 236; Burns v. Meyer, 100 U. S. 671, 25 L. 103 Fed. 295. ed. 738: Keystone Bridge Co. v. Phoenix Iron Co. 95 U. S. 274, 24 L. ed. 344; Merrill v. Yeomans, 94 U. S. 568, 24 L. ed. 235; Bates v. Coe, 98 U. S. 31, 25 L. ed. 68; Gill v. Wells, 22 Wall. 1, 22 L. ed. 699.

Proof as to the relationship of a patented invention to the art to which it appertains, so as to enable the court to judge whether the invention is one of a primary character, or one only of a subordinate character, is relevant and important in order to enable the court to properly and justly apply the doctrine of equivalents in considering the claim and deciding the question of infringement.

A patent, like any other instrument, is to be interpreted upon its own terms. Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 222, 26 L. ed. 149.

The court will not transpose the patent into a different art from that to which it purports to relate, and will not, upon evidence extraneous to the patent, find that the purpose of the invention was different from that stated, and that a claim for mixing molten pig iron in a way to produce a uniform homogeneous product is to be interpreted as though it were a claim for a manipulation in the process of Bessemerizing iron, with which uniformity in product has nothing whatever to do.

Lehigh Valley R. Co. v. Mellon, 104 U. S.

Morley Sewing Mach. Co. v. Lancaster, 129 U. S. 263, 32 L. ed. 715, 9 Sup. Ct. Rep. 299; Miller v. Eagle Mfg. Co. 151 U. S. 186-112, 26 L. ed. 639; Yale Lock Mfg. Co. v. 207, 38 L. ed. 121-130, 14 Sup. Ct. Rep. 310. No device or step not referred to in the patent can be, by construction or reference to evidence outside of the patent, incorporated in it.

McClain v. Ortmayer, 141 U. S. 419, 35 L. ed. 800, 12 Sup. Ct. Rep. 76.

The claim as allowed in the patent must be read and interpreted with reference to the rejected claims and to the prior state of the art, and cannot be construed to cover either that which was rejected by the Patent Office or disclosed by the prior devices. Hubbell v. United States, 179 U. S. 77, 45 L. ed. 95, 21 Sup. Ct. Rep. 24; Leggett v. Avery, 101 U. S. 256, 25 L. ed. 865; Shepard v. Carrigan, 116 U. S. 593, 29 L. ed. 723, 6 Sup. Ct. Rep. 493; Knapp v. Morss, 150 U. S. 227, 37 L. ed. 1061, 14 Sup. Ct. Rep. 81; Magic Light Co. v. Economy Gas-Lamp Co. 38 C. C. A. 56, 97 Fed. 87; Irwin v. Hasselman, 38 C. C. A. 587, 97 Fed. 964; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co. 99 Fed. 758; Campbell Printing-Press & Mfg. Co. v. Duplex Printing-Press Co. 41 C. C. A. 351, 101 Fed. 282; Reineke v. Dixon-Woods Co. 42 C. C. A. 388, 102 Fed. 349; New York Asbestos Mfg. Co. v. Ambler Asbestos AirCell Covering Co. 103 Fed. 316.

Where a function is not described in the patent the presumption is against a construction which makes such function an important feature of the invention.

MacColl v. Knowles Loom Works, 37 C. C. A. 346, 95 Fed. 982; Union Edge Setter Co. v. Keith, 139 U S. 530, 35 L. ed. 261, 11 Sup. Ct. Rep. 621; McClain v. Ortmayer, 141 U. S. 419, 35 L. ed. 800, 12 Sup. Ct. Rep. 76; Kursheedt Mfg. Co. v. Naday, 103 Fed. -948.

The patented method is not limited to the mixing of metal drawn directly from the blast furnace, but covers as well the mixing of remelted pig metal.

Lovell Mfg. Co. v. Cary, 147 U. S. 623, 37 L. ed. 307, 13 Sup. Ct. Rep. 472; Leggett v. Standard Oil Co. 149 U. S. 287, 37 L. ed.

Greenleaf, 117 U. S. 554, 29 L. ed. 952, 6 Sup. Ct. Rep. 846; White v. Dunbar, 119 U. S. 47, 30 L. ed. 303, 7 Sup. Ct. Rep. 72.

The disclaimer is ineffective to change the meaning and scope of the patent as issued.

Grant v. Walter, 148 U. S. 547, 37 L. ed. 552, 13 Sup. Ct. Rep. 699.

The typical case for the application of a disclaimer is where two distinct claims exist, one of which it is desired to cancel; the disclaimer then acts as the pruning knife of a tree; one branch is cut away, another branch is unaffected. Such disclaimers were before the courts in

O'Reilly v. Morse, 15 How. 62, 14 L. ed. 601; Seymour v. McCormick, 19 How. 591, 15 L. ed. 777; Sessions v. Romadka, 145 U. S. 29, 36 L. ed. 609, 12 Sup. Ct. Rep. 799; Burdett v. Estey, 4 Bann. & Ard. 7, Fed. Cas. No. 2,145; Matthews v. Spangenberg, 20 Blatchf. 482, 19 Fed. 823; Torrant v. Duluth Lumber Co. 30 Fed. 830; Parker v. Sears, 1 Fish. Pat. Cas. 99, Fed. Cas. No. 10,748; Burden v. Corning, 2 Fish. Pat. Cas. 477, Fed. Cas. No. 2,143; Christman v. Rumsey, 4 Bann. & Ard. 517, Fed. Cas. No. 2,704; Tyler v. Galloway, 20 Blatchf. 445, 12 Fed. 567; Brainard v. Cramme, 20 Blatchf. 530, 12 Fed. 621; Hake v. Brown, 37 Fed. 783; Union Paper-Bag-Mach. Co. v. Waterbury, 39 Fed. 389; Steam Gauge & Lantern Co. v. Kennedy, 41 Fed. 38; Smead v. Union Free School Dist. 44 Fed. 614.

There is another series of cases in which patent claims are construed by the courts to cover alternately two distinct inventions, definitely distinguishable from each other, and in which a disclaimer has been held to be an effective remedy for limiting these claims to one alternative.

Tuck v. Bramhill, 3 Fish. Pat. Cas. 400, Fed. Cas. No. 14,213; Taylor v. Archer, 4 Fish. Pat. Cas. 449, Fed. Cas. No. 13,778; Libbey v. Mt. Washington Glass Co. 26 Fed. 758; Electric Accumulator Co. v. Julien Electric Co. 38 Fed. 117.

The law furnishes no warrant for the re

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