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the patent is not addressed to lawyers, or ferentiated from prior patents than in that even to the public generally, but to the which was finally accepted, but there is manufacturers of steel; and any description nothing to indicate that Jones did not unwhich is sufficient to apprise them in the derstand from the first that the distinlanguage of the art of the definite feature guishing feature of his invention was the of the invention, and to serve as a warning preservation of a considerable quantity of to others of what the patent claims as a iron in the reservoir. monopoly, is sufficiently definite to sustain 3. The question of infringement only rethe patent. He may assume that what was mains to be considered, and, in the view we already known in the art of manufacturing have taken of the prior devices, presents no steel was known to them, and, as observed serious difficulty. The court of appeals was by Mr. Justice Bradley in Webster Loom of opinion that "the defendant's reservoir, Co. v. Higgins, 105 U.S. 580, 586,26 L. ed. or accumulating ladle, complained of, is the 1177, 1179, "he may begin at the point same in principle as one which has been in where his invention begins, and describe use at the Cambria works ever since Bessewhat he has made that is new, and what it mer steel was first manufactured there, replaces of the old. That which is common with only this difference, that at first it and well known is as if it were written out was used at cupola, now at furnace.". If in the patent and delineated in the draw. such were the fact, of course defendant ings." We think this second claim not would not be open to the charge of infringeonly describes with suficient clearness the ment. Undoubtedly it has the right to purpose of the patent to secure uniformity make use of all prior devices, and particuof the molten metal in its constituent parts larly such as had been used at its own preparatory to further treatment, but, read with the specification, sufficiently de manufactory. In order to understand the scribes the process by which this uniform- device made use of by the defendant prior

ity may be secured by always preserving in to the Jones invention, we reproduce here on the reservoir a sufficient quantity of molten with two small but easily understood cuts,

metal to secure such uniformity of product. taken from its brief, showing the character It is undoubtedly true that the storage fea of the ladle known as the Bessemer interture appeared more prominently in the mediate ladle, used by it and generally by specification which was first rejected upon all American mills manufacturing steel by the ground that it was not sufficiently dif- 'the Bessemer process.

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It appears elsewhere in the testimony tically so, while the direct metal was that the intermediate reservoir or ladle was largely variable in composition. from fifteen to eighteen tons' capacity, and The testimony further shows that, after the converter from six to eight tons; that the installation of the Jones mixer at the the molten metal* was tapped from the cu- Edgar Thomson works, Mr. Morgan, the polas into the reservoir, and withdrawn for defendant's mechanical engineer, visited and the converter, and as the intermediate ladle inspected these works, and obtained inheld considerably more than the amount of formation as to their practical operation, metal necessary to charge a converter, and was advised by the superintendent as there was some incidental mixing; but the to the location and proper size of the mixer main and perhaps the only purpose of the and its contiguity to the converters. Mr. reservoir was for storage, and that if any Morgan does not deny this conversation, quantity of metal were left in the reservoir although he qualifies it by saying that he it was by accident rather than by design. thought the Jones apparatus had grave deIt will be noticed, too, that the reservoir fects. Shortly after this visit, and in the was open at the top. It does not appear to latter part of 1895, defendant installed an have been made use of in carrying out what apparatus of its own for the operation of is known as the direct process, the differ- the direct process, which is herewith proence being that the cupola practice fur. duced upon a small scale and in comparison nished a metal for the Bessemer converter with the Jones process. It consisted of a that was uniform in composition, or praco' covered refractory lined and turtle-shaped

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vessel of about 300 tons' capacity, arranged | fendant were allowed *habitually to become to tilt, and having a spout at either side for empty in carrying out its process, there receiving and pouring out the metal. The would be no infringement; but all the evi. metal was brought to the mixer and poured | dence contradicts this. In the Jones pracin at one end, and," through a spout on the tice this cannot be done, since the mixer other side, was poured into a ladle, which cannot be tilted beyond a certain point. In supplied the Bessemer converters. The metal the defendant's mixer it can be done, but is was supplied both from blast furnaces and not, since the operator is not allowed to tilt cupolas, the former furnishing about two it beyond a certain point gauged by a chalk thirds, the latter about one third, of the mark. This seems to be the only foundametal used; but the metal from the cupola tion for the charge so frequently, reitersystem was delivered by a ladle to the conated, and in varying language, that the verter direct and not through the reservoir. methods in use before the Jones process deThe metal from the blast furnace entered prived that process of all novelty, and if the reservoir in about fifteen-ton ladle lots, novelty existed it was by reason of the vary. and was withdrawn in approximately ing modes of executing such methods; the twelve-ton lots. The chief engineer of the inference from this being that, as the Jones company states that, "in accordance with method was old, it could only be treated as the natural way of using the reservoir, it is new because of the conduct of individuals ordinarily kept well filled up.” That in in applying the method and their intenthe practical operation of the mixer or res. tions, and that this reduces itself to the ervoir a large quantity of iron was retained proposition that the Jones patent rests upfor mixing purposes is evident from the on the mere intention or minds of persons. fact that a chalk mark was made on the If we understand this argument correctly, side of the mixer, which was not allowed to it is that the prior method contemplated run below the floor, as a guide to the men storing only, and the mixing was but an inwho rotated or tilted the mixer, since, if the cident, while the Jones patent contemplates mark went below the floor and out of sight, mixing as its main object and storage only they could not tell how much iron was left as an incident. in the mixer. Under these instructions not This proposition that the application of to allow the chalk mark to go below the this patent depends upon the individual infloor there was retained in the mixer about tent of the operator overlooks the essential 175 tons of molten metal, amply sufficient nature of a process patent. The directions for the purposes stated in the Jones patent. and specifications of such a patent are ad. Its principle of construction was similar to dressed to those engaged and skilled in the that of the Jones mixer, and its operation art. It professes to disclose a method of identical. Indeed, defendant's engineer procedure, not the particular instrumentali. himself says: "With the exception of ad. ty that may be employed. It may be, as ditions of cupola metal, I do not know that suggested, that one person may, and in ig. there is any material difference between our norance of the patented method, make use practice and that described in the second of a reservoir merely as such, and without claim" of the Jones patent. We agree, in any desire to avail himself of the patented the opinion of the circuit court, that "it is process; but such a fact would not deprive quite clear, in view of these facts, that in the discoverer of the process of the protecfringement takes place. That initial mix- tion of his patent. Such a supposed case ing rather than storage is the purpose of might present a question of fact for a court the reservoir is shown by the fact that the or jury, and if it were made to appear that cupola metal is not stored, but served direct the party charged with infringement had, as in ladles to the converter plant. And that in this case, changed the instrumentalities the homogeneous mixture, once obtained, is used by him after a new method had been used as a dominant pool to produce a grad. disclosed, and particularly if he had for the uated, nonabrupt product, is shown by the first time used a special device necessary chalk line minimum limit of 175 tons. to that process, a jury might well refuse to With such a permanent dominant pool in believe and find that the defendant was only constant use, we are clear that respondent's following the old methods of procedure, and practice infringes the second claim of the not seeking to avail himself of the plaintiff's Jones patent in both letter and spirit." invention.

If the contents of the mixer used by de-' * But we think the difference in the two

processes may be illustrated by a very sim- positions of successive small portions drawn ple example: Let us imagine a reservoir from the reservoir, without attaining subcontaining, say, three quarts, and filled stantial uniformity, loses most of its sig. with one quart each of three liquids of dif- nificance. We do not know how the process ferent constituent parts, and withdrawn can be better described than in the specififor further treatment at the rate of one or cation itself: "To provide means for rentwo quarts at a time. Necessarily, there dering the product of steel works uniform would be some incidental mixing, but it in chemical composition." The variations would occur at once that the main object in such composition are said to be "particof the reservoir was a retention of a suffi- ularly in silicon and sulphur," and the pro cient quantity of the mixture to supply the cess to be one of mixing, whereby the par. receptacle for further treatment, and if no ticles of metal "are diffused or commingled necessity existed for a longer retention of thoroughly among each other, and the enthe liquid in the reservoir, it could be very tire charge is practically, homogeneous in quickly emptied by two discharges into the composition, representing in each part "an receiving vessel. Now, let us substitute for average of a variety of uniform constituent this reservoir a cask of, say, sixty quarts, parts, all the charges of the converter from into which the liquids of different constitu- time to time will be substantially uniform." ent parts are poured in at one end from a This, denuded of all hypercriticism, is the multitude of receptacles, and discharged at object of the Jones invention, which seems the other end after remaining a certain time to be the only one yet devised for carrying in the cask, and that this cask could not be on what is known as the direct process. If tilted so far but what a quantity of liquid it be true that this process cannot be car. would be left within it amounting, say, to ried on without infringing the Jones pathalf its capacity. Now, if there be no dis- ent, he is certainly entitled to a monopoly tinction between these two operations there of the invention. If it can be, then every would be little left to the Jones process, the method theretofore known for carrying on very vitality of which consists in the size such process was open to the defendant of the cask relative to the ladles and the But we think the change from the Bessemixing of the various liquids poured into mer intermediate ladle to the Jones mixer it before they are withdrawn.

was a radical one, and was made for a purIf, as insisted by the defendant and found pose. That purpose was clearly the adopby the court of appeals, the reservoir now tion of the Jones process. used is the same in principle as the one It is true that before the facts were fully which had been in use at the Cambria Iron ascertained a stipulation was signed to the Works ever since the Bessemer steel was effect that the "amount of molten*metal in first manufactured there, and the same were said mixer (defendant's) varies from nothadequate for the purposes of the direct pro- ing to its full capacity, depending on the cess, why was any change made? Therein supply and demand, the supply being genwe think the court of appeals made its most erally sufficient to keep the mixer more than serious error. The defendant had an un- half full of molten metal, which metal requestioned right to manufacture steel as it mains molten therein." It appears, how had been accustomed to do; but instead of ever, that upon the facts being more fully that it abandons the Bessemer uncovered ascertained, notice was given that, in so far ladle of twelve to eighteen tons, and adopts as the stipulation varied from the facts apa covered refractory lined reservoir of 300 pearing in the testimony of defendant's extons' capacity, and makes use of it, not as pert, it would be repudiated, and particu. before, for the storage of cupola metal, but larly that portion wherein it was said "that for the mixing of blast-furnace metal ac- the amount of the molten metal in the mix. cording to the direct process. This, too, er varies from nothing to its full capacity." was done immediately after Mr. Morgan's As it clearly appears from the mouths of visit to plaintiff's works.

defendant's own witnesses (notably Mr. It is true that with the growth of the Morgan) that, in the usual operation of the production of furnaces*from fifty tons a day mixer, the ordinary amount of metal kept in 1872 to four or five hundred tons in in the reservoir was more than one half its 1895 all apparatus would naturally be in- capacity, we think that plaintiff's. case creased in size; but why was the open res- should not be prejudiced by this stipula. ervoir theretofore used for cupola metal tion. Stipulations are ordinarily entered provided with a cover and enlarged in its into for the purpose of saving time, trouble, capacity from fifteen to three hundred tons or expense, and in this case it recites that -twentyfold-while the converter was lit-"as defendant's counsel is expected to sail tle more than doubled in size? Why was for Europe in a few days, and may not be it so operated that 175 tons were left in the back for about four months, it is thereforo mixer as a dominant pool, if no infringe. stipulated by counsel for both parties, to ment were contemplated ? ' In the face of save delay, as follows." But while the stipthese facts the question so earnestly pressed ulation is undoubtedly admissible in evi. by the defendant, whether the “method of dence it ought not to be used as a pitfall, mixing molten metal,” covered by the sec- and where the facts subsequently developed ond claim, was one for securing a substan-show, with respect to a particular matter, tial homogeneous composition of metal, to that it was inadvertently signed, we think the end of getting a practically uniform that, upon giving notice in sufficient time product, or was one simply for the purpose to prevent prejudice to the opposite party, of preventing sudden variations in the com-counsel may repudiate any fact inadvertent

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715 ly incorporated therein. This practice has (cess was one not* accidentally discovered, been frequently upheld in this and other but was the result of a long search for the courts. The Hiram, 1 Wheat. 440, 4 L. ed. very purpose. The surprise is that the 131; Hurt v. Ilollingsworth, 100 U S. 100, manufacturers of steel, having felt the want 103, 25 L. ed. 569, 570; Malin v. Kinney, for so many years, should never have dis1 Cai. 117; Barry v. New York Mut. L. covered from the multiplicity of patents and Ins. Co. 53 N. Y. 536.

of processes introduced into this suit, and In short, we are clearly of opinion that well known to the manufacturers of 'steel, the reservoir now in use is used for entirely that it was but a step from what they aldifferent purposes from the intermediate ready knew to that which they had spent Bessemer ladle formerly employed; that the years in endeavoring to find out. It only process carried on with it is identical with remains now for the wisdom which comes the Jones invention; and that its primary, after the fact to teach us that Jones disif not its sole, use, is for mixing purposes, covered nothing, invented nothing, accomwith necessarily incidental storage, while plished nothing. the Bessemer intermediate ladle was solely We cannot better conclude this opinion used for storage, with little, if any, thought than by the following extract from the of the advantages to be gained by an inci- opinion of Mr. Justice Bradley in Webster dental mixing

Loom Co. v. Higgins, 105 U. S. 580, 591, 26 * Discarding now all that does not bear di- L. ed. 1177, 1181: “But it is plain from the rectly upon the validity of the Jones pat- evidence, and from the very fact that it was ent, and dropping all superfluity of words, not sooner adopted and used, that it did let us determine exactly what' Jones has not, for years, occur in this light to even contributed, if anything, to the art of mak- the most skilful persons. It may have been ing steel. He undoubtedly found reservoirs under their very eyes; they may almost be of small size in use, in which were poured said to have stumbled over it; but they cerfrom receiving ladles enough molten metal tainly failed to see it, to estimate its value, to fill them, and from which a sufficient and to bring it into notice. .. Now amount was discharged to supply a convert that it has succeeded, it may seem very er, usually about half the size of the reser- plain to anyone that he could have done it voir. But in all these cases the fact wheth- as well. This is often the case with invener any particular amount of metal was left tions of the greatest merit. It may be laid in the reservoir was treated as a matter of down as a general rule, though perhaps not indifference or accident, although there an invariable one, that if a new combination must have been necessarily some incidental and arrangement of known elements promixing; and probably the metal as it ran duce a new and beneficial result, never atinto the converters approximated more tained before, it is evidence of invention.” nearly to uniformity than when it ran into The decree of the Cirouit Court of Apthe reservoir. The former methods were peals is therefore reversed, and the case readequate for cupola metal, uniformity in manded to the Circuit Court for the Westwhich had been largely secured by a careful ern District of Pennsylvania for further selection and breaking up of the pigs, but proceedings consistent with this opinion. it had not proved a success for blast-furnace metal, except that it had been used to Mr, Justice White, with whom concurs & very limited extent in foreign countries Mr. Chief Justice Fuller, Mr. Justice where the peculiar character of the iron ore Harlan, and Mr. Justice Brewer, dissenthad rendered it possible to carry on a direct ing: process, although apparently by methods To elucidate the reasons which constrain quite other than those employed by Jones. me to dissent, it is deemed essential to give The principal step employed by Jones was a mere outline of the processes by, which to magnify the capacity of the reservoir iron and steel were made prior to June 4, about twentyfold, provide it with a cover, 1889, when the patent in suit was issued, and to arrange that it should not be tilted in so far as such processes in some aspects beyond a certain point, in order that a "concern the manufacture of steel by what "considerable quantity" of molten metal is known as the Bessemer method, to which might be retained in it for a sufficient time the court now declares the patent in suit to accomplish a pretty thorough mixing, solely relates. but little change having been made in the Into the stack of a smelting furnace iron meantime in the size of the receiving ladles ore, with suitable fluxing material and fuel, and converters. As the reservoir was de- was introduced. In the operation of the signed to hold a large quantity of metal furnace the ore was reduced to a metallic for a considerable time it must have been state by the oxidizing action of carbon or covered to obviate the contents being gas containing carbon. This metallic iron crusted over or sculled.

melted in the lower part of the furnace, As soon as this method had proven to be taking up a proportion of carbon and other successful by employment at the Edgar ingredients, dropping to the bottom of the Thomson works, and had become so well hearth as molten pig iron. The earthy imknown as to attract the attention of other purities combined with the flux, and were manufacturers of steel, it found a ready also melted and descended into the hearth, sale, was adopted by all the leading manu- resting upon the top of the molten metal. facturers in this country, and was sold for The inolten metal was drawn from the use abroad for about $50,000.

hearth from time to time by tapping, and It should be borne in mind that this pro the molten impurities, combined with the

flux, forming a cinder, were also drawn cupola furnace was used to supply a confrom the hearth at a higher level. As the verter, and that the tappings from such cumolten iron was tapped it was run out into polas were drawn into a common reservoir molds, and came to be known as pig iron or or ladle, and there stored until required to pigs. These pigs were not of uniform com- be carried to the converter. Indeed, irreposition, because of the varying quantity of spective of the necessity of storing the tap. the constituents contained in the ore and pings, growing out of the difference bethe chemical changes wrought by irregulari-tween the capacities of the vessels in ques. ties incidental to the operation of the fur- tion, such storage was additionally required nace.

in order that the operation might be conTo make foundry castings, pigs were se- tinuous, in case of delay resulting from aclected, broken up, charged into a cupola cident to the converter or otherwise. furnace, reduced to a molten state, and the In the direct process the capacity of blast liquid was drawn off into a receiving ladle. furnaces greatly exceeded that of cupola From this the quantity desired was tipped furnaces. The molten iron was tapped di. into a smaller vessel known as a casting la- rectly from the blast furnace into a number dle, and was poured into the molds. Where of receiving reservoirs or ladles, and carmore than one cupola furnace was em ried for treatment to the converter. ployed, each was tapped, and the metal On October 31, 1888, William R. Jones poured through a groove into a receiving made application for two letters patent, one fadle, common to the furnaces, where it was stated to be for a new and useful improveheld for use, and drawn as required into a ment in apparatus “for mixing molten pig casting ladle, and carried to the molds, as metal,” the other for a process declared to already mentioned.

be "a new and useful improvement in methIn 1855 and 1856 Sir Henry Bessemer ob- ods of mixing molten pig metal.” The aptained various patents covering his discov: plication for the first or apparatus patent ery for producing malleable iron and steel was several times rejected, and, after vari. by forcing currents of air through molten ous amendments, was finally allowed. This iron. The appliance described was a re- patent may be dismissed from view, as it is fractory lined vessel, called by Bessemer a not involved in this controversy. The first converting vessel, which came to be desig- application for the process patent—which nated as the converter or the vessel. With is the patent under consideration in this out going into detail, it suffices to say that, case—was rejected. Thereupon a new and for various reasons, the method of Sir Hen- amended application was presented. This ry*Bessemer proved not to be as advanta- was also rejected, when a second amend. geous as had been expected. Indeed, it was ment was made, and the application was not until Mushet patented a method of de finally allowed. carbonizing iron by completely blowing it As the opinion of the court has repro and adding ferromanganese or speigel-eisen duced the specifications and claims of the in a molten state that the difficulty of pro- patent, it is unnecessary to repeat them in ducing steel was solved and the process of detail, and therefore a mere outline of them Sir Henry Bessemer was rendered practi- is now given. The patent was entitled cal. Despite, however, the fact that Mush. “Method of Mixing Molten Pig Metal.” et's discovery was of immense value and The primary object of the invention was rendered Bessemer's conceptions a commer. stated to be "to provide means for rendercial success, Mushet allowed his patent right ing the product of steel works uniform in to lapse through neglect to pay the requisite chemical composition.". It was also stated fees in the third year; and (to quote the that: “My invention is not limited to its language of the author of the article on use in connection with converters, since sim. Iron, contained in Encyclopædia Britanni- ilar advantages may be obtained by casting ca, 9th ed. vol. 13, p. 342) "in consequence the metal from the mixing vessels into pigs his name is all but forgotten in connection for use in converters, puddling furnaces, or with his improvement on Bessemer's own for any other uses to which pig iron may process, the combination being ordinarily be put in the art.”. It was further stated termed 'Bessemerizing.'”

that: "My invention may be practised In the manufacture of steel by the Besse- with a variety of forms of apparatus,- for mer-Mushet process two methods were fol- example, by merely receiving in a charging lowed, one termed the indirect, the other the ladle a number of small portions of metal direct. In the indirect, pigs were charged taken from several ladles or receiving vesinto a reverbatory furnace, for which, at a sels containing crude metal obtained at diflater date, a cupola furnace was substitut- ferent times or from different furnaces, ed. In such furnace the pigs were melted mixing being performed merely by the act and run into ladies or reservoirs, and thence of pouring into the charging ladle, and oththe molten iron was conveyed to the con- er like means may be employed." verter for the necessary treatment. With It was, however, declared that it was out attempting to give accurately the vari preferable to use the device covered by the ations in the size and consequent capacity apparatus patent, and a description of the of cupola furnaces and converters, it is un- same was set out. That device may be thus questioned that the quantity of molten met described: It consisted of a covered tiltal which could be drawn at a single tapping ing tank of large size, "holding, say, 100 from the cupola was usually not adequate tons of metal [more or less],” lined so as to supply a full charge to the converter. "to retain the heat of the molten contents It followed that ordinarily more than one of the vessel and to prevent chilling there

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