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-secondary objects designed to be attained as consists in running successive charges of follows:

molten metal into a covered receptacle pro"My invention, however, is not limited to vided with a heat-retaining lining, removing its use in connection with converters, since from time to time from said receptacle for similar advantages may be obtained by cast- subsequent treatment a portion only of its ing the metal from the mixing vessel into molten contents, and successively replenish. pigs for use in converters, puddling furing such receptacle with fresh additions of naces, or for any other uses to which pig molten metal, for the purpose of equalizing iron may be put in the art."

the character of the several charges of metal A description was then given of the ap. drawn therefrom, substantially paratus, which it was previously stated had scribed." been invented "for practising my inven. * Accompanying this paper was the argution," and the mode of operation of such ap- ment of the attorney, already referred to, paratus was stated. The claim read as fol- in which it was expressly declared, as has lows:

821.

been seen, that the patent related to uni. “The process hereinbefore described, which formity of molten metal for further treatconsists in storing charges of molten metal ment in converters, or otherwise; that is, in a covered receptacle provided with a as declared in the argument, the obtaining heat-retaining lining, removing portions only of a metal of such uniform quality that it of the molten contents of the said receptacle might not alone be used in converters, but without entirely draining or emptying the might be "used for casting without such same, and successively replenishing the re- treatment." ceptacle with fresh additions of molten As the application, as amended, was asmetal, whereby the character of the several serted to embody a claim for the continu. charges of metal so treated is equalized; ous operation of a plant by reservoiring substantially as described.”

metal, by inflowing and out flowing, with Considering the application as thus made, mixing, a method construed by the Patent what support does it lend to the theory now Office as identical with that described in the announced that it was the purpose of the Kirk publication,--the patent, as already Jones invention merely to prevent abrupt stated, was again rejected. It was again variations between each charge of metal amended, and, as thus

finally amended, the drawn from a reservoir for treatment in a patent was allowed. The new amendments converter? Such purpose is nowhere de- consisted, first, of a substituted statement clared, unless it be inferred from cer- of the primary object of the invention, which tain statements in the patent descriptive is excerpted in the margin. It will be obof the mode of operation of the appliance The primary object of my Invention is to covered by the apparatus patent, to which, provide means for rendering the product of hereafter, I shall more particularly advert. steel works uniform in chemical composition. The conception that the patent solely re in practice it is found that metal tapped from lated to abrupt variations in metal drawn different blast furnaces is apt to vary considfrom a reservoir and supplied to a converter erably in chemical composition, particularly in is absolutely excluded by the fact that the ity is observable in different portions of the

silicon and sulphur; and such lack of uniform. secondary object is pointed out to be to se same cast, and even in different portions of the cure a pig metal so uniform in its chemical same pig.' (Here follows table of analyses sa id constituents that it might be used "in pud- to have been made of metal contained in dildling furnaces or for any other use to which ferent ladle charges from one cast of a blast pig iron might be put in the art.” It can furnace.]

The consequence of this not be conceived that the patent provided tendency of the silicon and sulphur

to segregato for making the metal uniform in the reser- or form pockets in the crude metal is that the voir, and, by the same language, provided product of the refining process in the convertmerely against the occurrence of abrupt ity in these elements, and therefore often causes variations in the equalized metal when great inconvenience and loss, making It Imposdrawn off to a converter. If made uniform, sible to manufacture all the articles of a single there could not, in the nature of things, be order of homogeneous composition. Especially abrupt variations. It being, then, certain is this so in the process of refining crude iron that the process patent, as originally filed, taken from the smelting furnace and charged in and of itself not only contained even no directly into the converter without remelting intimation of the claim which the court now possesses many economic advantages, It has on

in a cupola, and, although such direct process attributes to the patent, it must follow that this account been little practised. if the patent covered such a claim it was

“For the purpose of avoiding the practical one not in the mind of Jones, but must have evils above stated, I use in the refining process been in some way evolved in the passage of a charge composed not merely of metal taken the application through the Patent Office. at one time from the smelting furnace, but of a

This original application, as I have said, number of parts taken from different smelting was rejected by the Patent Office as being furnaces, or from the same furnace at different "completely anticipated” by the Witherowcasts, or at different periods of the same cast, patents, and reference was made to the Kirk and subject the metal before its final refining publication.

to a process of mixing whereby Its particles are To meet this objection a change was made diffused or, mingled thoroughly among each by which the assertion of an exclusive right other, and the entire charge is practically hom. to store charges of molten metal was elimi-part the average of the unequally diffused and Dated, the amendment being as follows: segregated elements of silicon and sulphur origi

“The process hereinbefore described, which 'nally contained in each of the several parts or

*480

served, *from the concluding sentence in the “To this end my invention may be pracfirst paragraph, that it was clearly implied tised with a variety of forms of apparatus. that the applicant deemed that inequalities For example, by merely receiving in a were present in cupola metal as well as in charging ladle a number of small portions blast-furnace nietal.

of metal taken from several ladles or reThere was substituted for the single claim ceiving vessels containing crude metal obas originally presented and amended the tained at different times or from different two claims embodied in the patent as finally furnaces, the mixing being performed merely issued, and which have been previously set by the act of pouring into the charging out.

ladle, and other like means may be emIt plainly results from the amendment ployed." that it was drawn to meet the objection of And to make the object of the amendthe examiner and to make clear the fact ment perfectly clear, the prior description of that the character of the mixing contem- the method was supplemented by stating plated by the Jones process was not that that the "commingling of the contents may resulting from a continuous operation of a be aided by agitation of the vessel on its reservoir by the inflowing and outdrawing of trunnions, so as to cause the stirring or metal with the constant retention of a resid- shaking of its liquid contents." uum, but was a distinct character of mixing True it is that on the trial below the comby thorough commingling of batches of metal, plainant presented a disclaimer, which the in order to produce in a reservoir a moltencourt now upholds, by which he sought to metal which would be homogeneous and uni- eliminate froin the patent the amendments form, of a character deemed to be unattain- which had been inserted to meet the objecable by the continuous process; the purpose tions of the Patent Office examiner, and of securing this reservoir of uniform metal which indubitably fixes the meaning of the being to obtain a mixed metal so uniform in patent. I do not deem it necessary, howits chemical constituents that it might be, ever, to stop to refer to authorities to show with greater advantage than theretofore, that a disclaimer which, in effect, has for subjected to further treatment in the con- its object the making of a new patent by verters or be run into pigs, which, by rea- striking out the essential representations son of the uniform quality of the metal, upon which the patent was granted, is withmight then be used for any purpose where out legal warrant. This, it is submitted, is such a metal was desired. In other words, the obvious result of the authorities to the amendment was drawn for the purpose which the opinion of the court refers. of satisfying the Patent * Office that the But even if the patent as it is now made method which was claimed should not be over, as I think, by the effect which is given rejected because the prior art provided by the court to the disclaimer, be alone conagainst the mere variations in the metal sidered, it plainly results that the patent as drawn from the reservoir, as the patent so changed did not contemplate, as now de went further and described a process of mix- cided, solely the prevention of*abrupt varia.. ing which would bring about the greater re- tions in the metal drawn from the reservoir sult of a uniform molten metal and conse for use in the converter, since the patent quent uniform product.

yet provides: "Instead of discharging the This conclusion is rendered clear by the metal into the cars 12, and carrying it in fact that the amended application not only the cars to the converters or casting house, retained in substance all the prior declara- the vessel 2 may be so situate relative to tions as to the purpose of obtaining a uni- the other parts of a furnace plant as to deform mixed molten metal, and as to the use liver its contents immediately to the conof such uniform metal in converters, or verters, or other place where it is to be otherwise, but emphasized the same by add utilized.". I fail to see how it can be held, ing the following:

even giving the fullest effect to the discharges. By proceeding in this way not only metal to be supplied to a converter, when it

claimer, that the patent provides only for Is each charge for the refining furnace or converter homogeneous in itself, but, as it repre- expressly points out that the metal may be sents an average of a variety of uniform con- used "in the casting house, in the convertstituent parts, all the charges of the converter ers, or other place where it is to be utilfrom time to time will be substantially uniform, ized." and the products of all will be homogeneous. I come now to the statements found in To this end my invention may be practised with the patent to which I have previously al. a variety of forms of apparatus.--for example, luded, which the court thinks give support by merely receiving in a charging ladle a num to the claim that the patent had reference ber of small portions of metal taken from seyeral ladles or recelving vessels containing crude merely to the avoidance of abrupt variations metal obtained at different times or from dif- in metal supplied to the converters. The ferent furnaces, the mixing being performed statements thus relied upon are contained merely by the act of pouring into the charging in that portion of the patent where the mode ladie, and other like means may be employed. of operation of the appliance covered by the I prefer, however, to employ the apparatus apparatus patent is described. These passhown in the accompanying drawings, and have made it the subject of a separate patent appli- sages are excerpted in the margin.f cation, serial No. 289,673, and, without intend. “Referring now to the drawings, 2 repreIng to limit the invention to the use of that sents the resevoir before mentioned. It conspecific apparatus, I shall describe it particu- sists of a covered hollow vessel having an outer larly, so that others skllled in the art may in- casing 3 of iron or steel, which is suitably telligently employ the same."

braced and strengthened by Interior beams and

.482

*483

When the passages in question are prop- / whose quality may not be precisely the same erly considered, it becomes, I submit, incon. as that of any one of its constituent charges, trovertible that, instead of sustaining," they but represents the average quality of all the are antagonistic to, the construction which charges.” And the production of this homohas been given by the court to the patent, geneous mass, it is further observed, "may and hence sustain the construction which be aided by the agitation of the vessel on has been presented in this dissent.

its trunnions, so as to cause the stirring or Referring to the excerpted matter in the shaking of its liquid contents.” Manifestly, margin, it will be seen that in the second not only the obtaining of the homogeneous paragraph is described the mode of filling molten mass is absolutely incompatible with the reservoir. Various portions of metal, the theory that the patent related to mere termed "charges,” are drawn “either from a variations, but the statement about the aginumber of furnaces or at different times tation of the vessel on its trunnions is likefrom a single furnace," and such charges wise a negation that the conception of the are introduced into the reservoir until the patent related to the continuous inflowing vessel is full; that is, to use the language and outflowing of molten metal from the of the patent, until a "sufficient charge” has reservoir. The construction now put upon been supplied to the reservoir, the result be the patent by the court disregards the proing, as stated in the patent, that the vision that the variation which was to be charges of metal thus accumulated in the cured was that existing between the reservoir "constitute a homogeneous molten "charges” as they were poured in, and asmass, whose quality may not be precisely sumes contrary to the language of the patthe same as that of any one of its constitu- ent—that the purpose was to cure variations ent charges, but represents the average qual, which would exist in the mass of molten ity of all of the charges.” Thus it appears metal, when, by a sufficient charge, the resthat the patentee had in mind the cure of ervoir had been filled. And this, although the inequalities or variations present in the it is expressly declared in the patent that "charges” of metal poured into the reser by the operation of the reservoir, in the voir to make up the "sufficient charge," and mode described, the variations existing in thereby to cause such sufficient charge “to the metal before the pouring in would be constitute a homogeneous molten mass, destroyed by the mixing, which would cause tie-rods, as shown in the drawings. The whole | into the vessel, though differing in quality, exterior of the vessel is lined with fire brick or mix together, and when the vessel has received other refractory lining, which should be of suf- a sufficient charge its contents constitute a ficient thickness to retain the heat of the mol. homogeneous molten mass, whose quality may ten contents of the vessel and to prevent chill not be precisely the same as that of any one of Ing thereof. The vessel is strongly braced and its constituent charges, but represents the aversupported by braces and tie-rods, and may be age quality of all the charges. If desired, the of any convenient size, holding, say, 100 tons commingling of the contents may be aided by of metal (more or less), and its shape is pref- agitation of the vessel on its trudnions so as erably such as shown in the drawings, being rec- to cause the stirring or shaking of its liquid tangular, or nearly so, in cross section, and an contents. The mixing chamber being deeper irregular trapezium In longitudinal section, one at its rear than at the front end, as before de end being considerably deeper than the other. scribed, and its normal position when not disAt the top of the deeper end, which I call the charging metal for the purpose of casting being 'rear end, is a hopper 5, Into which the molten with the bottom inclined upward toward the metal employed In charging the vessel is poured, front or discharging end, and the bottom of the and at the front end Is a discharge spout 6, spout being situate above the bottom of the which is so located that the bottom of the vessel at Its forward end, it is adapted to respout is some distance above the bottom of the ceive and hold a large quantity of molten metal vessel,-say 2 feet in a hundred-ton tank, and without its surface rising high enough to enter more or less, according to the capacity of the the discharge spout." vessel.--the purpose of which is that when the "After the vessel is properly charged, the metal is poured out of the spout a considerable metal is drawn off into the cars 15 from time quantity may always be left remaining and un- to time, as it is needed, by opening the door or poured, and that whenever the vessel is replen- cover 16 of the spout 6 and driving the engine ished there may already be contained in It a 12, so as to elevate the rear end of the vessel body of molten metal with which the fresh ad- and tilt it forward, and thus to discharge any dition may mix. ( thus secure, as much as pos- required amount of its contents in the manner sible, uniformity in character of the metal before explained into the cars 15, which are which is fed to and discharged from the tank, transported to the converters, or the metal is and cause the fluctuations in quality of the suo cast into pigs or otherwise used. The tilting cessive tappings to be very gradual.

of the vessel does not, however, drain off all

the contents thereof, a portion being prevented "The mode of operation of the apparatus is as from escaping by reason of the elevated position follows: When the vessel is in the backwardly of the spout 6, and as the vessel is replenished Inclined position shown in Fig. 1, it is ready to from time to time each new charge mixes with receive a charge of metal from the car 7. Be- parts of previous charges remaining in the vesfore introducing the Arst charge, however, the sel, by which means any sudden variations in mixing vessels should be heated by internal the quality of the metal supplied to the convertcombustion of coke or gas, and when the walls er is avoideil. Instead of discharging the metal of the vessel are sufficiently hot to hold the into the cars 12, and carrying It In the cars to molten metal without chilling it, it is charged the converters or casting house, the vessel 2 repeatedly from the cars 7 with metal ob- may be so situate relatively to the other parts tained either from a number of furnaces or at of a furnace plant as to deliver its contents different times from a single furnace. The immediately to the converters or other place charges of metal introduced at different times where it is to be utilized."

the mass from which withdrawals were to court, reads out of the patent the repeated be made to become homogeneous.

statements as to the purpose of the patent *The error becomes more manifest upon an being to secure a uniform molten metal, and examination of the last of the excerpted disregards the fact that the patent expressly paragraphs, wherein is contained directions provides that what it aims to secure is such as to the withdrawals of the equalized metal uniform metal as is fit, not only for use in from the sufficient charge; that is, the filled converters, but for castings and any other reservoir of equalized metal and the replen- mode by which such a metal can be utilized. ishing of the reservoir with new charges to certainly, what has been previously stated make another sufficient charge. It will be is a demonstration that the construction seen that the patent contemplated the dis- previously given by me accords with the excharge of the mass of homogeneous metal press declaration made by the patentee when by tilting the tank down to a residue, and he applied for his patent, and is strictly in that no reference is made to replenishing harmony with the action of the Patent Office the reservoir until provision is made for the in allowing the patent. It is equally clear retention of a residue. Then the reservoir that the construction of the patent, which is to be replenished by the addition of new has been by me elucidated, is, besides, in accharges which mix with these parts of pre-cord with the conception entertained by the vious charges, which have been equalized Patent Office of the meaning of the patent and which remain in the rese oir as a resi- long after it had been issued. Thus, the due. Obviously, in this subsequent addition Commissioner of Patents, in a report bear. of charges it was intended that a “sufficient ing date January 1, 1896, reviewing the adcharge" of metal should be contained in the vance in the industrial arts, said (italicsreservoir, which, when thoroughly mixed, mine): would form another homogeneous mass of “A process now commonly used in steel molten metal, it being declared "by which manufacture is that of patent No. 404,414, means any sudden variations in the quality January 4, 1889, to Jones, in which he deof the metal supplied to the converter is scribed a means of getting a uniform prodavoided.” “By which means" is clearly uct of metal by mixing together in a suitmeant the bringing into existence of the able receptacle batches of metal from differhomogeneous mass referred to in the pat- ent furnaces, so that the mixture when ent. In other words, the patent points out drawn off will be the average of the differthat by making all the "constituent charges” ent charges.” of a "sufficient charge" homogeneous there As the views hereinbefore expressed suffiwould be no variations in the withdrawals ciently make manifest the reasons for my from that equalized mass. And this is, be- dissent, it is unnecessary to stop to notice sides, made more manifest by the following many matters considered in the opinion of sentence in which attention is called to the the court. Lest, however, if they are not fact that the equalized metal thus drawn referred to, it may be assumed that assent off might be carried to the converters or is given to them, the more important of be cast into pigs without treatment in the such statements * are briefly adverted to.* converters.

First, it is said that the making of steel Moreover, turning to the first paragraph by the direct process was commercially in the excerpt, it will be perceived that it is impracticable before the grant of the Jones stated that the operation of the mixer as patent, and that that patent operated a revo described will "secure, as much as possible, lution in the art. The proposition, in my uniformity in the character of the metal opinion, finds no support in the record. On which is fed to and discharged from the the contrary, it is affirmatively established tank (meaning the equalized mass), and that not only on the continent, but in Eng. cause the fluctuations in the quality of the land and in this country, long prior to the successive tappings to be very gradual." grant of the Jones patent, Bessemer steel That is to say, the patent contemplated that was made by the direct process, upon a each distinct full reservoir or sufficient large scale, continuously and successfully. charge, constituting a batch of metal, would so far as revolution in the art is concerned be homogeneous in itself and substantially by the alleged enormous saving rendered uniform in its chemical constituents, and possible by the use of the Jones method, it the successive "sufficient charges" or "full is not perceived how such a statement is reservoirs" would, by means of the residuum, compatible with the unquestioned proof in vary but*slightly between each other. The the record that, although the complainants words "successive tappings" can have no at their Edgar Thomson works erected sev. other meaning than successive batches, for eral of the Jones mixers about the time of it is impossible to conceive that they could the grant of the Jones patent, they did not refer to the separate withdrawals of metal introduce them into their other works until taken from one full reservoir or sufficient more than seven years afterwards. Indeed, charge, because it had been declared that to my mind it is established by the record the constituent charges” of each full reser- that the Jones method, when put into pracvoir of metal by the operation described tical operation by the complainant, proved would become homogeneous; that is, practi- not to be a commercial success, and the apcally uniform.

paratus was continued in use despite this Certainly, this construction of the patent fact because of the neans which it afforded gives effect to all of its provisions, and har- of securing on a larger scale the benefits of monizes with its plain letter, while the con storage hitherto well known in practice, and trary construction, now approved by the that the use of this larger storage vessel

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became more and more advantageous as the THE STEAMSHIP STYRIA, Antonio G. capacity of blast furnaces was enlarged and Scopinich, Claimant, Petitioner, improvements took place in the mode of

o. their operation.

JOHN MUNROE et al.
The statement that upon the grant of the
Jones patent the so-called mixer was at once

[No. 75.) adopted by steel works generally in this country is also unwarranted by the facts in War-discharge of contraband goods-disevidence, which establish without any con cretion of master-duty to reship. flict that storage reservoirs of like capacity to that of the Jones apparatus were in use 1. The discharge and warehousing at Port at the time of the hearing of this cause in Empedocle, Sicily, by the master of an Ausbut three steel works in the United States trian vessel bound from Trieste to New York outside of those operated by the complain via Sicilian ports, of sulphur shipped at that ant, and that their introduction long after

port, which had become contraband of war the grant of the Jones patent in such out

by reason of the outbreak of the war be side works is shown to have been coincident

tween Spain and the United States and by

the Spanish proclamation of April 23, 1898, with the increase in blast-furnace output without awaiting the result of the rumored and the pecessity which had thus arisen for efforts of the Italian government to Induce greater reservoir capacity to hold the enor. the Spanish government to exempt sulphur mous supply of molten metal which was from the list of the contraband of war, was then being produced by the operation of a reasonable exercise of the discretion vested blast furnaces. The record, moreover, es

in him by the bills of lading, having due re. tablishes that in the works in question,

gard to the Interests of the ship and cargo, where, long after the grant of the Jones

both contraband and Innocent. patent, large reservoirs were first employed, 2. No duty to reship, a lot of sulphur

properly

uploaded and warehoused at Port Empedocle, this was done, not because better results

Sicily, because it had become contraband of were secured by means of mixing than har war by reason of the existence of war bebeen obtained by the mixing theretofore re tween Spain and the United States and the sorted to, but because the larger output of Spanish proclamation of April 23, 1898, was blast furnaces pointed to the necessity for Imposed upon the master of the vessel before the construction of a larger reservoir than

sailing to New York via Sicilian ports, by those previously employed.

his knowledge that the Siellian newspapers The effect of the decision now rendered,

reported that a temporary verbal arrange

ment bad been made between the Italian and it seems to me, is, therefore, to put the pat

Spanish governments under which sulphur entee in a position where, without invention

might go free. on his part, and without the possession by him of lawful letters patent, he is allowed to exact tribute from the steel and iron

[Nos. 72–75.) making industry, whenever those engaged in such industry desire to increase their plants argued and submitted November 22, 25, or to more conveniently and satisfactorily

1901. Decided May 19, 1902. conduct their operations so as to keep pace

N WRITS of certiorari to the United trial development.

Second Circuit to review a decree modifying I am authorized to say that the CHIEF a decree of the District Court for the SouthJUSTICE, Mr. Justice Harlan, and Mr. Jus- ern District of New York in favor of the tice Brewer concur in this dissent. libellants in a suit in admiralty. Reversed

in part, and affirmed in part. (186 U. S. 1)

See same case below, 41 C. C. A. 639, 101 THE STEAMSHIP STYRIA, Antonio G.

Fed. 728.
Scopinich, Claimant, Petitioner,

Statement by Mr. Justice Shiras:

Four libels in admiralty were filed in the JAMES L. MORGAN et al.

district court of the United States for the

southern district of New York against the [No. 72.]

steamship Styria, to recover damages for

the failure dulyto deliver at New York lif." THE STEAMSHIP STYRIA, Antonio G. ferent lots of sulphur, owned by the libel. Scopinich, Claimant, Petitioner, lants, shipped on board the Styria at Port

Empedocle, the port of the town of Girgenti, SCHUYLER L. PARSONS.

in Sicily, April 21-24, 1898, and shortly

afterwards relanded at the port of shipment [No. 73.)

because it had become contraband of war. The facts were substantially undisputed, and

were as follows: THE STEAMSHIP STYRIA, Antonio G.

The Styria was an Austrian steamship, Scopinich, Claimant, Petitioner,

owned by the Austro-Americana Steamship

Company, and Burrill & Sons of Glasgow AI.FRED S. MALCOLMSON. were her managing agents. She sailed April

16, 1898, with some cargo, from Trieste via (No. 74.]

Sicilian ports for New York, and on April

with the natural evolution

of modern indus- OStates Circuit Court of Appeals for the

NÅLCOLMS

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