Carson Inv. Co. v. Anaconda Copper Mining Co.

• Decision Date: 24 January 1927
• Docket Number: No. 229.,229.
• Citation: 17 F.2d 815
• Parties: CARSON INV. CO. et al. v. ANACONDA COPPER MINING CO.
• Court: U.S. District Court — District of Montana

17 F.2d 815 (1927)

CARSON INV. CO. et al. v. ANACONDA COPPER MINING CO.

No. 229.

District Court, D. Montana.

January 24, 1927.

Kremer, Sanders & Kremer, of Butte, Mont., and John H. Miller, Charles S. Wheeler, Jr., and A. W. Boyken, all of San Francisco, Cal., for plaintiffs.

L. O. Evans, D. Gay Stivers, and John A. Groeneveld, all of Butte, Mont., D. Anthony Usina, of New York City, Jones. Addington, Ames & Seibold, W. Clyde Jones, Arthur A. Olson, Thorley von Holst, A. F. Mecklenburger, and Arthur B. Seibold, all of Chicago, Ill., for defendant.

BOURQUIN, District Judge.

This is the usual infringement suit, involving the patents and claims upheld in Carson v. Company (C. C. A.) 4 F.(2d) 463. Defendant's motion to dismiss for defect of parties, made at beginning of trial (a dilatory and vile practice), not heard then, is denied now. Although Carson, one cestui of several, brought the suit ostensibly as sole owner, and which questionable tactics are poorly explained, and although contrary to former practice in equity, a cestui is not a necessary party, it is believed the interests of all cestuis warrant amendment to substitute owner and trustee.

The trial required, or rather consumed, 10 days, amassing some 1,600 pages of evidence and "near" evidence, 200 exhibits, and 300 pages of depositions, and 475 pages of briefs leisurely prepared during 3 months subsequent to trial, are contributed. The whole is a conglomeration wherein the material and necessary is as Gratiano's reasons, so far as environment is concerned. All this is not unusual, and may be imputed to (1) a large array of specialists, assistants, and their assistants, investigators, prompters, experts, etc., for strategical purposes in huddle on slightest provocation, to some extent inspired to display of abstruse learning and superior skill, if only to impress and awe others from forays in the specialist's fertile field; and (2) to the new equity rules. For, whatever else may be said of the latter, they require weeks to try a suit which formerly was presented in days, they have congested calendars, delayed litigation, and increased and intensified the labors of courts. Perhaps some time relief will be found in judges able as juries to forthwith decide, rather than after recollection wanes in awaiting deferred briefs.

Herein the issues are simple and few, and naught but the earlier case justifies extended consideration. Its record in large part in evidence, plaintiffs contend that in many particulars the appellate tribunal's decision therein is controlling here. In equity, it is the practice to thus introduce the record of the earlier patent suit to which a present party is a stranger, and for no very good reason. That assigned is comity, conformity, and stability of judicial decisions. There is, however, a more vital principle, which in balance of convenience and justice ought to be maintained, viz. no party shall be prejudiced by proceedings to which he is a stranger.

This principle controls in jury trials, the earlier record denied admission, and this distinction without difference exposes the fallacy of the practice; for what is competent before the one trier of facts is competent before the other, and neither ought to be influenced by incompetent evidence. At any rate the practice is nullified by the strategical discovery that the earlier record is "different." And it always is different — is different in the instant case. For always are differences in the imponderables at least, the imponderables so vital to credit and weight attaching to witnesses before the court; and new circumstances often require different construction of documents. Moreover, the integrity of trials demands that the judgment of one trier of facts be not influenced by that of some other in a different case.

The appellate tribunal's decision in said record is accorded due respect, but here, as elsewhere, it controls only to the extent it determines the law. In any event, different decrees may well be justified by different records. See Concrete, etc., Co. v. Gomery, 269 U. S. 177, 46 S. Ct. 42, 70 L. Ed. 222; Tilghman v. Proctor, 102 U. S. 708, 26 L. Ed. 279.

Adverting to the evidence, Carson applied for the earlier of the patents on January 15, 1907, and it issued on August 10, 1915. It is for "improvements in metallurgical furnaces." The specifications describe a process in instrumentalities, and the single claim is:

"In a metallurgical furnace, having receptacles arranged above the roof thereof, passages from said receptacles leading to said furnaces arranged in such a manner that the material in said receptacles passes out into said furnace by gravity and form the lining thereof."

So far as material, the following drawing from the patent discloses the invention:

In the meantime, conceiving he was not receiving his dues, Carson filed a divisional application on June 26, 1915, for "an improvement in the construction of roofs of open hearth and reverberatory furnaces," and patent issued on April 29, 1919. It contains three claims, the two involved being:

"2. The method of protecting the walls of an open hearth or reverberatory furnace which consists in feeding the ores or fettling materials into the furnace chamber near the upper part thereof, and in causing the same to form a sloping embankment resting upon the floor of the furnace chamber and along the walls within the chamber between the bath and walls.

"3. In an open hearth or reverberatory furnace, a floor, walls extending upwardly from the floor, and feeding ports leading into the upper part of the furnace chamber and being so located that the ores or fettling materials entering therethrough may have unrestricted vertical movement downwardly to the said floor near the walls and may form sloping embankments against the walls to protect the latter from the heat and corrosive action of the metal bath."

The following drawing is from the patent:

By later disclaimers, "or fettling materials" was excluded from the claims, and the meaning of "ores" and "charge" was modified accordingly. Ignoring all crudities, ambiguities, and superfluities in Carson's applications, the invention claimed, patented, and involved is a process to protect the sides or walls of smelting furnaces from heat and bath, and that, by sloping embankments of ores upon the hearth and against the sides or walls, formed by gravity consequent upon feeding the ores into the furnace at or near the tops of the walls.

It is of defendant's contentions that therein Carson had been anticipated by disclosures in many patents to Siemens and others, and it is the court's judgment that the defense is made out. The Siemens patents follow:

British 167 of 1861, for improvements in smelting furnaces, is material, for that in its "sloping sides" of the hearth proper is the forerunner of the "inclined walls" of Siemens' later patents, for that it defines "plenum of pressure" (a term undefined in the next patent) as full atmospheric pressure, and for that he states that solids (fuel) to be treated will by gravity descend over an "inclined plane * * * at an angle of 45 degrees or thereabouts," and in a deep layer will accumulate upon it and a grate or hearth of an angle of 30 degrees.

British 2,413 of 1866, for improvements in processes and furnaces, amongst the specifications being that:

"My invention has for its object the production of iron or steel directly from the ore and in a continuous manner, analogous in this respect to the continuous action of the blast furnace, and consists in exposing a mass of ore, which may or may not be mixed with reducing agents or fluxes, to the surface action of intense heat produced by the combusion of highly-heated air and gaseous fuel, and in introducing at the same time a current or currents of combustible gases, or of petroleum oil or other volatile hydrocarbons, alone or in combination with the combustible gases in amongst the mass of ore from below the same, so as to percolate through the mass, effecting its reduction, and at the same time enveloping its surface where exposed to the flame in a nonoxidizing or reducing atmosphere, yielding a certain amount of carbon tending to facilitate its fusion; the mass of ore being arranged in such a manner, by preference upon inclined surfaces, that the fused metal produced at the surface readily passes away therefrom, so as to leave such surface always exposed to the action of the heat. The fused metal and slag accumulating at the foot of the inclined surfaces of the ore are from time to time removed, while a mass of ore is maintained upon the inclined surfaces by its own gravitation, fresh ore being supplied from hoppers at the top of the incline in regulated quantities. * * *

"One of the principal advantages of this furnace is that the sides are protected against fusion by the ore or other substance to be melted, particularly at the surface line of the liquid cinders, where brickwork is rapidly destroyed."

This patent describes in detail a complete principal process of iron ore smelting and steel manufacture, included within which is a minor or incidental process of ore protection of furnace walls. Other of the specifications is that a "plenum of pressure" be maintained, which, when reducing agents are mixed with oxide ores, will "cause a certain amount of gas to percolate upwards through the mass of ore" on the inclined walls and in the hoppers. Amongst other claims is:

"Fourth, arranging the chamber in which the simultaneous reduction and fusion of the steel or iron is effected in such a manner that the ore descends through hoppers or shafts upon the sides of the chamber, so as to protect the walls or inclined surfaces thereof from the heat of the furnace and the corrosive action of the slags or cinders of the metallic bath by the interposition of the ore itself, substantially as described with reference to the accompanying drawings."

Of various drawings, two...