Carson v. American Smelting & Refining Co.
| Decision Date | 21 November 1923 |
| Docket Number | 144. |
| Citation | 293 F. 771 |
| Court | U.S. District Court — Western District of Washington |
| Parties | CARSON v. AMERICAN SMELTING & REFINING CO. |
The plaintiff claims by this method and process to have closed the side doors, dispensed with the center charging hoppers and introduced an opening near the roof along inside the wall, through which he introduces smelting ore by dropping the ore alongside of the wall in the furnace, piling up and making an embankment sloping from the top of the furnace against the walls and extending inward into the furnace in a crescent shape, thereby protecting the side walls from the intense heat and from scorification from the matte, thus using smelting ore for fettling material, exposing a large surface to the smelting operation, and the ore being fed slowly will melt and flow down the embankment to the bottom of the furnace; the difference in specific gravity causing the slag to be at the surface and matte in the bottom of the bath. As fast as the ore is smelted, new ore is fed into the opening through the roof, and brought automatically within the range of smelting operations-- the contention being that this produces a new method of smelting, as well as a method of protecting the side walls of the furnace from scorification, and that it makes the smelting operation continuous; that it exposes a maximum surface of ore, making the smelting more efficient by reason of a constant uniform temperature, obviating laborious operations of fettling by hand, saving cost of fettling material and labor, and greatly increasing the tonnage of ore smelted within a given time.
The defendant contends that the contention that the claim of patent No. 1,149,495 is but a structure, and that the lining of the claim is the refractory metal of the specification and may be in whole or in part refractory ore, containing metal value which would be smelted, and the assertion that the 'duplex nature' of the invention is supported by an 'ambiguity in the specifications,' is without foundation, and that the use of the side hoppers and smelting in the smelting furnaces came with the advent of oil or powdered coal for fuel and 'flotation concentrates,' [1] which was in 1913, this fuel increasing the available heat for smelting from 2,500 degrees F. to about 3,000 degrees F., and nearly doubling the output. This increased the need for fettling material, and the plaintiff repeated only what was done at Butte, Bingham, and Anaconda in 1905-06; that the introduction of 'flotation concentrates,' which are finely comminuted ores which go into the furnace at 900 degrees F. and flow like water on mercury, and on introduction spread on the matte throughout the furnace area and that the plaintiff had no conception of such method of introducing material into the furnace; and that claims 2 and 3 of patent No. 1,302,307 deal only with fettling material, and that the claim now made may not be read into the patent, and finally the apparatus contended for in the first patent and process in the second patent express the same inventive idea.
John H. Miller, Chas. S. Wheeler, Jr., and A. W. Boyken, all of San Francisco, Cal., for plaintiff.
John A. Shackleford, of Tacoma, Wash., Frederick P. Fish, of Boston, Mass., Albert M. Austin, of New York City, and J. L. Stackpole, of Boston, Mass., for defendant.
NETERER District Judge (after stating the facts as above).
The purpose of plaintiff's invention, patent No. 1,149,495, is to feed material into the furnace--
'primarily to make a lining for the furnace, though primarily it gives up any values it may contain to the bath. ' 'A moving temporary lining of the furnace chambers. ' 'A dike shutting the molten interior of the metallic bath away from contact with the walls of the furnace chambers.'
Patent 1,302,307:
'To protect the walls of a reverberatory furnace by feeding ores into the furnace through feeding ports leading into the upper part, where it may have unrestricted downward movement to the floor, causing it to form an embankment resting along the walls between the bath and the walls.'
In plain words, the Siemens furnace has inclined surface walls closed at the top by a brick arch having openings through which ore is introduced by gravitation onto the inclined surface, where it is exposed to intense heat, the molten metal flowing to the bottom, leaving the inclined surface exposed to the heat, the walls being protected from the corrosive action of the metal bath, 'particularly at the surface line of the matte, where the brick is repeatedly destroyed;' and the Carson furnace has walls extending vertically from the floor, closed at the top by a brick arch having openings near the walls through which ore is discharged unrestricted in a vertical downward movement to the floor near the walls, and forming sloping embankments against the walls and protecting them from the heat and corrosive action of the metal bath.
While the Siemens furnace in the patent No. 2,413 is a small affair compared to the furnace of the present day, and was a blast furnace in reducing iron ore, yet the specifications provided that it may ' * * * be used to advantage for the fusion and reduction of copper * * * ore. * * * ' There is this difference in construction: The Carson wall is vertical, and the Siemens wall has a 60 per cent. incline. In each, however, the ore may be deposited in a similar fashion. The ore embankment between the matte and the wall in the Carson patent is thicker than in the Siemens patent. The angle of repose of the ore in the furnace in each patent must be the same. The angle of repose is the slope at which the ore or material deposited will attain without any sliding effect.
While the Siemens furnace is inefficient compared with modern smelters, in principle, however, Siemens taught the art of dropping ore on a slope exposing a large surface to intense heat, the exposed charge, smelting, running down in rivulets towards the center of the furnace, and exposing fresh surface to the heat; this being repeated, and new charges being added as necessary by the use of slides through which the ore is introduced, resting on the floor of the hearth and against the walls, and protecting the walls from the heat of the furnace and erosive action of the bath. This is also the Carson idea:
'The materials pass by gravity into the furnace and form a border or levee resting on the hearth and against the walls of the furnace, and act as an inside lining to protect the same from scorification and erosion by the bath. * * * '
Again:
Figure 1:
'15, are gates or dampers to control the flow of the refractory material through the orifice, 6.'
In fact, there is no difference, except 'in some cases' the substitution of plates 'held in place by steel beams' for brick walls.
The objection of the plaintiff to the impracticability of the Siemens patent appears overcome by the construction of the furnace at the Garfield smelter, where the angle formed by the floor and vertical wall was filled in with brick to make an inclined surface of 60 degrees, as in the Siemens patent, and upon ore being introduced in the openings in the roof, the angle of repose of the ore was found to be from 30 to 50 degrees, depending on the character of ore introduced, and this incline did not operate against the protection of the wall from heat, and sustains Claim 4, Siemens British patent 2,413, and the furnace was successfully operated in a commercial way for more than one year, and was, it is said, in operation at the time of this trial. This would make it appear that the substance of the Siemens invention may not be held inefficient because of alleged imperfections in minor matters affecting the substance of the invention claimed (Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749), or application to new uses in the art (Lovell Mfg. Co. v. Cary, 147 U.S. 623, 13 Sup.Ct. 472, 37 L.Ed. 307). The angle of repose of the flotation concentrates in defendant's furnace is not more than 30 degrees.
It appears that the Siemens British patents anticipated and render invalid the claim of the Carson patent, No. 1,149,495. In thus concluding, I am not unmindful of Siemens' statement in his application for American patent No. 113,584, 1871. It was to remedy what he considered inefficient and ineffectual in practice in his British patent, No. 2,413, that he took out two subsequent British patents, and in his specifications for the American patent, making reference thereto, he says:
Nor to the conclusion of the Board of Examiners in the Patent Office, in its decision on the Carson appeal in patent application, No. 1,302,307, saying that, in view of the United States patent admissions:
'We...
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