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of,” with receiving and charging spouts, a gas-heating appliance contained in the discharging spout, and so constructed that, after being fully charged with molten met: al, drawn from the furnaces into ladles and poured into the reservoir, as the metal was poured out for use a considerable residue would remain in the reservoir to mix with an incoming charge. The patent em read as follows: “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.” On December 2, 1895, the Carnegie Steel Company, Limited, which had acquired full title to the Jones patents, commenced the present suit against the Cambria Iron Company for an alleged infringement of the foregoing process patent. The defenses made by the answer were substantially a denial of infringement and an averment of want of patentable novelty. After the evidence for the defendant was all in and several witnesses had been examined in rebuttal, the complainant, on March 30, 1897, stated “that at the hearing of the cause he will urge infringement of the second claim only of the patent in suit.”. At the close of all the evidence the complainant filed what is termed a “petition for disclaimer,” praying that the court would receive in evidence a certified copy of a disclaimer of portions of the specifications, which on that day had been sent to the Pat- ent Office for filing. The trial court ad: mitted the disclaimer in evidence. The porstions of the specifications" covered by the disclaimer are printed in italics in the patent as reproduced in the opinion of the court. The disclaimer need not be further noticed at this time. It was shown beyond question that in November, 1895, the defendant had erected at its works a reservoir of the capacity of about 300 tons, for the storage of molten metal drawn from its blast furnaces, the metal so stored being held in the reservoir for the purpose of treatment in the converters. This reservoir was described by a witness in the following condensed manner: “It was cylindrical in shape, with slightly convex ends, and in turning [for the purpose of pouring out, the metal] it revolves upon the center of the cylinder. It is sup

ied two claims which

ported upon cradles of rollers, and the motion is imparted to the reservoir by hydraulic cylinders.” As this cause, as already stated, does not involve the Jones apparatus patent, no question of infringement of the mechanical device embraced in such patent can possibly arise. In this reservoir the molten metal as tapped from the furnaces was stored continuously, and the reservoir was drawn upon with like continuity to supply molten metal for treatment in the converters. While it is not asserted that the use of the reservoir, as , just stated, caused the metal stored therein to become uniform in its chemical constituents, it is conceded that the method pursued counteracted the inconvenience of sudden variations in the metal as drawn for converter purposes. There is controversy, however, whether the defendant, in reservoiring its molten metal, irrespective of the supply and demand, intentionally retained in the reservoir a considerable residuum. From the view taken by me, however, it is unnecessary to pass on this contention, since the principles deemed by me applicable to the cause will be wholly unaffected, even if it be conceded that the defendant, in operating its reservoir, in filling it with molten metal, and in drawing the same off for use in the converter, designedly held in the reservoir a considerable residuum of molten metal in order that the metal which was subsequently charged into the reservoir might commingle with that retained. on The cause was decided by the circuit: court in favor of the “complainant. The s court held that the second claim of the patent referred alone to metal direct from the blast furnace intended to be Bessemerized in a converter, and that the object was, not the obtaining, by mixing...a molten metal substantially uniform in its chemical constituents, but the avoidance of abrupt variations between the various charges supplied to the converter. The patent was construed as not contemplating the mixing of batches of metal; that is, the filling up of the apparatus and a drawing down to a “residue” before replenishing. The gist of the Jones idea was stated to be “the creation and maintenance of a great pool of metal between the blast furnaces and converters, through which all the incoming and outgoing metal must pass,” by which means abrupt variations were prevented, although neither a uniform molten metal nor a uniform product was thereby obtainable. Indeed, the court said: “In Jones, uniformity is a nonessential—in fact, a nonattainable—attribute of product, and is a necessary nonsequence of material used.” While the court found that reservoiring was well known in the art at the time the Jones patent was obtained, and that mixing necessarily resulted from such reservoiring, it held that the Jones method was patentable, because the reservoiring known to the art contemplated storage, and not the prevention of abrupt variations; that although a mixing of the metals was of course the inevitable result of the reservoiring, such

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fact did not preclude the validity of the Jones patent, because prior to its grant the mixing arising from reservoiring was incidental to storage, while under the Jones method the storage was incidental to the mixing. The court said: “Now that mixing of some character took place in the ladle during these operations; that where it took place the resultant was a homogeneous average of all constituent ingredients contained, are facts to gainsay which would be to question nature's laws; but the indisputable fact remains that such mixing was accidental, eccentric, and nonsystematic, and therefore not of a systematic, regular, functional type or for a systematic, functional purpose.” A decree was entered reciting that the patent in question was valid as to the second claim thereof; that the defendant,” “by reason of the use of a certain method of mixing molten pig metal, as in the said complainant's bill set forth, has infringed the said recited letters patent as to the second claim thereof, and has violated the exclusive rights of the said complainant thereunder.” #. was adjudged that recovery be had of the gains and profits made by the defendant and the damages sustained by complainant, and a master was appointed to ascertain the amount of such gains, profits, and damages. The defendant was, in eneral terms, enjoined from any further infringement of the second claim of the letters patent and of the exclusive rights of complainant thereunder. An appeal was taken to the circuit court of appeals. That court held that the second claim of the patent did not cover the retention in reservoiring of a considerable residuum, even though the same was designated as a dominant pool, and if it did that the method was not patentable in view of the state of the art, and that the proceedings in the Patent Office demonstrated that this was in effect conceded by Jones. It was decided that the defendant had the right to reservoir its molten metal, and that its method of doing so did not infringe the patent. The court decided that the disclaimer was not warranted by the statute, but that in any event it was ineffective to alter the true meaning of the patent. Thereupon the decree of the circuit court was reversed. This court now reverses the decree of the circuit court of appeals, adopts the views of the circuit court, and in effect affirms the decree of that court. The court expressly upholds the theory of a dominant pool, and decides that the Jones patent related, not to the obtaining of uniform molten metal by mixing in a reservoir, and a resultant uniform product, but solely to the procuring, by means of reservoiring, molten metal which would not abruptly vary in its chemical constituents when drawn from the reservoir for use in a converter. The opinion of this court now, as did that of the circuit court, expressly concedes that reservoiring of molten metal was well known in the art at the time the Jones patent was applied for, and that mixing was the inevitable re

sult of such reservoiring; but it is decided that this fact did not operate to deprive the Jones"method of novelty or to relieve the defendant from the charge of infringement. My mind is unable to assent to the construction which the court affixes to the patent, and as it is conceded that the method used by the defendant does not infringe unless the patent has the import which the court has given to it, the reasons for my dissent would perhaps be most directly made manifest by stating what seems to me to be the true construction of the patent. Doing so, however, is for the moment pretermitted, for two reasons: 1. Because to my mind it seems that even if it be granted, arguendo, that the patent is susceptible of the construction which the court has placed upon it, on the face of the opinion, the conclusion reached is wrong; in other words, the opinion of the court to me seems selfdestructive. 2. Because if the concession of the court be accepted, that reservoiring and mixing were well known in the art, then it follows, from a consideration of the record, that the patent, as construed by the court, was wanting in patentable novelty. That is to say, if the admissions of fact made in the opinion of the court are right, its conclusion is demonstrated by the record to be unsound. Let me briefly advert to the opinions of this court and of the circuit court, to point out the reasons which constrain to the first proposition just stated. The circuit court concluded that the o; of molten metal from cupola and blast furnaces for use in casting or in converters was well known to the art at the time the Jones patent was applied for. It also declared as follows: “That mixing of some character took place in the ladle during these operations; that where it took place the resultant was a homogeneous average of all constituent ingredients contained, are facts to gainsay which would be to question nature's laws. But this was held not to establish that at the time the Jones method was patented that method as now construed was known to the art or had been anticipated, because, in the prior practice, the mixing “was accidental, eccentric, and nonsystematic, and therefore not of a systematic, regular, functional type, or for a systematic, functional purpose;” that such mixing was incidental to storage, while in the Jones method storage was incidental to mixing. This court approvingly adopts and elaborately restates these views. Now, my reason does not enable me to conceive how, consistently with the view of the prior state of the art as to mixing and reservoiring which is admitted, the conclusion as to the patentability of the Jones method as construed can be sustained. It would seem to be beyond question that, as it is held that the mixing resulting from the storage as practised prior to the grant of the Jones patent was the resultant, as stated. of a well-known law of nature, it must follow that the qualifying words “accidental, eccentric, oi, and func

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tional type or purpose” could only relate to the conduct of the 1. who practised the method prior to the Jones patent. This must be unless it can be said that a wellknown law of nature was accidental, eccentric, nonsystematic, and nonfunctional. The qualifications, then, applying, not to the law of nature, but to the conduct of parties, the reasoning must come to this: Although the method attributed to the Jones patent was well known to the art at the time that patent was issued, and hence it was intrinsically wanting in patentable novelty, nevertheless such method must be held to have embodied invention because the well-known practice was carried out by individuals in a varying and irregular manner. But this is only to say that while the Jones method was old, it must be treated as new because of the conduct of individuals in applying the method and their intentions. And this reduces itself to the proposition that the Jones patent as construed covered the mere intention or mind of persons. The reasoning is equally applicable to the distinction which is asserted to exist between storing and the mixing incidental thereto, and mixing with incidental storage. The mere form of expression cannot create a distinction where none exists, or destroy a law of nature. As by me it cannot be conceived that various #4. of molten metal can be stored in a common reservoir without resulting mixing, it follows necessarily, by the law of diffusion of fluids, the mixing is the secondar s: result arising from and created by the pri3 mary act of storage. It is impossible that * the secondary force can be caused to"become the first and creating power by a mere collocation of words. If, then, the distinction has significance, as of course it must have, since the court makes it the basis of its decision, it can only mean this, that those who practised the reservoiring of molten metal before the grant of the Jones patent mainly contemplated storage, and did not in their minds take into view the inevitable mixing which would arise therefrom by a law of nature; therefore, in the minds of the person so reservoiring, the storage was the primary, and the mixing the incidental, consequence. But, on the contrary, as those reservoiring metal after the Jones patent must be considered to have contemplated, first, the advantages resulting from mixing, therefore, in their minds, the mixing is the principal and the storage the accessory. But this is only again to say that while the Jones method was old it is to be treated as new because it covered the intention of those who stored metal for the purpose of use. 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

storing of the fluid for use as required, and this implies the drawing off as desired, the replenishing at will, and the keeping of such residuum or reserve supply as may be deemed best. It may not be doubted that to say that one who stores fluid for use is obliged, whenever he draws any off, to draw all off before replenishing, is to say that such party has not the right to reservoir. If it É. meant by the court that the right to reservoir carries with it the right to draw off or to retain at will, unless the person reservoiring intends to retain a residuum for a particular purpose, the reasoning reduces itself again to the proposition that the Jones patent covers, not the process described therein, but the mind and intention of the individual who may exercise the right to reservoir molten metal. That is to say, my reason does not enable me to understand hhow the right to reservoir can be admitted,: "and yet such right be at once denied by a construction of the patent which imposes qualifications on the right to reservoir, which, in effect, renders its beneficial exercise impossible. In other words, I fail to see how the exclusive right can be conferred to do the very thing which the court admits was well known at the time the patent to Jones was issued. The conflict which my mind perceives between the facts admitted upon the face of the opinion and its conclusion is expressly pointed out by the opinion itself, where it is said: “If the contents of the mixer used by the defendant were allowed habitually to become empty in carrying out its process there would be no infringement.” That is, if in the use of its reservoir the defendant did not habitually retain a residuum there would be no infringement. But the admission that the occasional use of a residue would be no infringement concedes that the patent did not embrace the right to use a residue, for if it was covered by the patent it would be an infringement to avail of it even occasionally. Thus it must follow that the exclusive light which the court upholds is expressly declared to relate, not to the process, but to the mere habit of the defendant. For the purpose of demonstrating the second proposition previously adverted to, let me now recur to the state of the art as depicted by the record, in order to point out that even if the Jones patent embodied the process which the court now attributes to it, that process was wanting in patentable nov. elty. In doing this, for convenience, the subject is thus divided: (a) The use of molten metal drawn from cupolas for foundry purposes, before the invention of Bessemer, as well as the foundry practice and the Bessemerizing practice by the indirect proc. 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.

Foundry and Indirect Bessemer Practice Before the Grant of the Jones Patent.

1. The Whitney-Car-Wheel Practice: At

the Whitney car-wheel works in Philadelphia, to commencing in 1847, remelted pig metal from several cupola furnaces was tapped at * intervals"into a large reservoir ladle having a capacity of from twelve to fifteen tons. From this the molten metal was poured into charging ladles having a capacity of but 600 pounds. A considerable residue was always maintained in the reservoir ladle. The principal purpose, as testified to by wit. nesses having personal knowledge of the subject, was to secure, as a consequence of the mixing resulting from the reservoiring, the p.” of a practically uniform product.

xcerpts from the testimony of John R. Whitney contain a clear statement on the subject:

“When the [large] ladle was nearly full we began to pour from it into the smaller ladles, each one of which held enough for one wheel. If it was an ordinary size wheel it held enough for one wheel, and if the wheels were smaller ones it held enough for two or three. As that drew the molten iron from the ladle, and the iron continued to melt, the ladle was constantly being filled from the cupola, and it was kept full until all the iron charged in the three cupolas was melted and the bottoms dropped. Then the iron was continued to be poured out of the large ladle until it was all used, those two methods making the uniform mixture; that is, we mixed it in a solid state, first by our charges and then in the molten state in the large ladle.

“As the mixture [of selected iron] was charged into each cupola, as I have stated, it was made up of irons from various furnaces, some iron having one quality and some another. As it is melted in each cupola, it did not all melt at the same time, and if we had drawn it directly from the cupola into the small ladle from which we [. the wheels, one wheel might have

n poured out of very hard iron, another wheel out of very soft iron, and so every shade between. ere 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.”

2. The Wheeling Foundry Practice: Kirk e on Founding of Metals, 1875, thus described a foundry practice (italics not in original): * “In melting iron I should recommend melting it hot, and as fast as possible. 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 mir. In most all the foundries at Wheeling, West Virginia, the cupolas are never stopped from the time the blast is put on until the bottom is dropped. A large ladle is set on trestles in front of the cupola, in such a manner that the iron can run into it from the cupola and be poured out into the smaller ladles at the same time. The iron is all run out of the cupola as fast as it is melted, and is mixed in a large ladle. I

think this is a good way of mixing iron. See alloys.” 3. The Altoona Practice: At the Altoona wheel works of the Pennsylvania railroad, from 1871, the cupola metal was designedly stored and mixed. The early reservoir ladle, of seven tons' capacity, received the metal from two cupolas, and was thus described: “A. The ladle turns on two trunnions, and has chains leading from these trunnions down to the hydraulic cylinder shown on the drawing, one chain being wound in one direction on one trunnion and other being wound in the other direction on the other trunnion, and the two chains being connected at opposite ends of the piston rod.” In describing the regular way of working each day the witness said (italics not in original): “In the first place each cupola is charged with about forty tons of metal. We charged about forty tons in each cupola; then after we have this done we put the blast on and begin to melt, and as soon as ever the bed in the cupola is filled up with molten metal we tap it out into the receiving ladle or reservoir, which fills the reservoir about one-half full, then we stop the cupolas up again until the iron raises to the eyeholes, then they are tapped again, and this second o generally fills the reservoir; then after the reservoir is full, we begin to pour the metal out into smaller ladles, then send it around to the molders for pouring into the wheel molds.

“The custom was to empty, the receivings ladle about one half; then hold the remain-der of iron in the reservoir 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.”

In the London Engineering for 1877, describing the practice pursued at Altoona, when a ten-ton receiving ladle was used, it was said: “It was found advisable to employ a ladle of so large a capacity, because by doing so a more complete miarture of the different irons is effected than would be the case if a smaller vessel were employed.”

And the methods of using cupola metal for, foundry purposes above described were early applied to making Bessemer steel by the indirect process. The following excerpt from the testimony of a witness clearly states the subject:

“A. L. Holley, who built the Troy works, and made his first conversion in 1865, introduced into this original plant tipping accumulating ladle resting on scales. This ladle was patented by Bessemer in 1869, English patent 566, alluded to in the previous, answer, but apparently was an American invention. It was introduced in some form or other in all the American works, and was used almost always in duplicate, holding about two heats each, or many cupola tappings. In the last works built in St. Louis by Holley, in 1876, there

were three of these ladles. In all American works these ladles were turning or tipping ladles, and were placed on scales to weigh the converter charges.” In 1877, describing the Vulcan works, a lant designed and erected under Mr. Holey's supervision, that gentleman said (London #."; 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 i. will hold six vessel charges, which may be stored and conE verted 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 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 o the extent of use in this country of the receiving ladle as follows: “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 ladies 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 necessarily varied from time to time considerably, both in chemical and physical conditions; at times the metal being such from one or two of the cupolas that in themselves they would be unfit for converter use. But by the means which was afforded by the intermediate ladle the metal from this one, or 22 S. C.—46.

the two, cupolas, would be averaged with the better adapted metal for converting from S the others.” : *Speaking of the beneficial effects resulting from the use of the accumulating ladle at the works of the defendant, another witness (Cabot) said: “The ; of cupola metal at Cambria was accomplished by the tapping of a number of cupola furnaces into one large receiving 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.’ 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 constituent 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 reser-> voiring 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 metal, a dominant pool, as a part of the process of reservoiring; and, second, as the practices in question related to molten metal drawn from cupolas, therefore they did not establish that reservoiring and mixing were known to the art so far as concerns the molten metal drawn directly from blast furInaces.

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