Tietig v. Ladd

• Decision Date: 29 April 1964
• Docket Number: Civ. A. No. 4004-62.
• Citation: 228 F. Supp. 637
• Parties: Rudolph TIETIG, Jr., and Daniel J. Pollingue, Jr., Plaintiffs, v. David L. LADD, Commissioner of Patents, Defendant.
• Court: U.S. District Court — District of Columbia

228 F. Supp. 637

Rudolph TIETIG, Jr., and Daniel J. Pollingue, Jr., Plaintiffs, v. David L. LADD, Commissioner of Patents, Defendant.

Civ. A. No. 4004-62.

United States District Court District of Columbia.

April 29, 1964.

Irvin H. Rimel, Washington, D. C., Russell H. Clark, Chicago, Ill., for plaintiffs.

Clarence W. Moore, Sol. Washington, D. C., for defendant.

JACKSON, District Judge.

This civil action was instituted pursuant to 35 U.S.C. § 145 seeking judgment authorizing the defendant, Commissioner of Patents, to grant a patent on an application¹ Serial No. 750,603 entitled "Method of Adding Solid Material to Molten Metal", filed on July 24, 1958, by the plaintiffs, Rudolph Tietig, Jr., and Daniel J. Pollingue, Jr.

The invention at bar relates to a method of adding predetermined quantities of solid material additives such as manganese, ferrosilicon, and aluminum to the ladle during the tapping operation of an open-hearth furnace. The solid material is supported above the ladle by a pan capable of being vibrated by electromagnetic means, and during the tapping operation the pan is vibrated at a variable rate so as to discharge the alloying materials into the ladle at a rate of flow proportioned to the flow of the molten metal being drawn from the furnace.

There are two claims in issue in this case, and both parties agree that they stand or fall together. They are as follows:

"8. The method of adding solid alloying material in discrete form to molten steel for alloying purposes, the steps which include tapping a steel furnace into a ladle, supporting the alloying material above the ladle by means of a vibratory pan, discharging the alloying material from said pan into the ladle during the tapping operation by vibrating said pan, and regulating the discharging rate for said alloying material by varying the vibratory motion of the pan so as to proportion the discharge of the alloying material to the rate of flow of molten steel into the ladle.

"9. The method of adding solid material in discrete form to molten steel as defined by claim 8, wherein the step of tapping the steel furnace is conducted in a manner to cause a swirling motion of the metal in the ladle, and wherein the alloying material is discharged into the ladle at a point adjacent the entry of the molten steel into the ladle."

The tribunals of the Patent Office rejected those claims as unpatentable over the Reebel publication, and the McConnell patent No. 1,318,164 in view of the Gebo patent No. 2,539,070. At the trial counsel for defendant introduced into evidence the Brassert patent No. 2,277,067.

The Reebel publication on pages 95 and 96, discusses the making of open-hearth steel, and states that crushed alloying solid materials "contained in bags may be thrown into the ladle — or they may, more preferably, from a uniformity standpoint, be added in regulated amounts into the spout or ladle by means of a hopper, operated by a long lever controlled by the furnace man."

McConnell discloses a process by which super-refined or "special steels" may be obtained by gradually adding crushed alloying materials to the ladle while the molten steel is being poured or tapped from the furnace. In his process McConnell utilizes a container mounted on a pivot above the ladle which is tilted by the furnace operator so as to pour alloying materials into the ladle at the proper time.

Gebo discloses metallurgical processing equipment employed in conjunction with ore sintering machines. A vibrating feeder mechanism and pan is employed to convey hot fines (discharged from the sintering machine) to a conveyor belt. A switch controls the vibrating feeder, and the switch is actuated by the weight of the insulating materials present on the conveyor belt. As long as there is sufficient insulating lead material on the conveyor belt, the switch allows the vibrating feeder mechanism to discharge the hot refined fines onto the belt. The vibrating feeder mechanism is set so the discharge rate is at one speed and the switch merely turns the feeder on or off.

Brassert discloses a process for producing steel directly from the ore without a melting step. This is accomplished by mixing the powdered ore with carbon, and then heating the mixture while vibrating it at a high frequency to reduce the iron oxides of the ore. The powdered ore and carbon are fed from separate hoppers discharging upon vibratory pans.

The tribunals of the Patent Office stated in their rejection that in view of the teachings of Reebel and McConnell, which disclose adding alloys gradually to the ladle, it would be obvious to one skilled in the art to substitute a vibrating feeder mechanism such as that shown by Gebo or Brassert for the hopper arrangement of McConnell to obtain better feeding control when adding alloys to the ladle. They also ruled it would be obvious to make the rate of addition of these alloys proportional to the amount of steel flowing into the ladle during the pouring operation.

The Patent Office admits none of the references in the case disclose the plaintiffs' proportionate feeding, but suggests the recitation of "so as to proportion the discharge * * * to the rate of flow" in claim 8 is so broad that it would be met by addition of alloying material from a vibrating pan at any rate whatsoever.

Initially, it should be stated that this Court is aware of the presumption of correctness that is attached to the decisions of the Patent Office. Cook v. Watson, D.C. 181 F.Supp. 896; Abbott et al. v. Coe, 109 F.2d 449, 71 U.S.App.D.C. 195, and Schaefer v. Watson, 109 U.S. App.D.C. 360, 288 F.2d 144.

Nevertheless, this is a trial de novo, and if the plaintiffs have shown the Board of Appeals' decision is clearly erroneous or lacks a rational basis, it must find for the plaintiffs.

As evidence accumulated at trial, it became clear that plaintiffs' method of feeding alloys into a ladle by means of a vibratory pan was indeed a "new and useful process" within 35 U.S.C. § 101 since no record existed of it ever having been done before. This narrowed the issue to whether, under the language of 35 U.S.C. § 103, "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art * * *."

The question of "obviousness" has been a continuing source of discussion among the Courts, and is acknowledged by the writers to have no rigid definition. Certain factors have traditionally been influential, however, in determining in particular instances whether a given difference between what was known and what was done would have been "obvious" at the time.

One of these factors, that when present weighs heavily in favor of patentability, is the satisfaction of a long felt want in the industry to which the invention applies. Kelley et al. v. Coe, 69 App.D.C. 202, 99 F.2d 435, and Kaakinen et al. v. The Peelers Company, 301 F.2d 170 (9th Cir. 1962). It was shown by undisputed evidence at trial that the steel industry has for some time been looking...