;
08_1Ns ,,:,
r·n
f1.CJiurBlllRs & McKnGLAss Co. :
t! ,.,::
qou,"-
w. p.:
August 11, 1892.)
t. P.'I'1IX'I'8
POll INV1INTloNs":'Exn'T'07:b.L.nt:s.:..oU88.MRLTING TANlI:S. Lotterl!lpatent :No. 261,OM, i88ueii-July 11, 1889. to 0.· W. Siemens, as assignee of covIlr u a taI!k ,con ti nuoul! of glass, having gas and air Pcirtt add of tile deptll Ilerelu' described, for the purpose of forming. below the. ,fluId, portion of the' memli;! "'layer of metal in · semifluid or partially solid ClOu9.Wllll, as anQ for tile purpo," described." his specifl.catlonsthe, applicant Iitate1i.tbat."in the fusional window or other wllite glass 'there Is a continthe particles: throughout the mass, as uousdesPllDdil1g and ascending Is provel1.Jlt thMVllaring away of theJlotl;Omll ot sllallow tankll. The advantage to be obtalUed ftOm locreashlg the deptlt of the tanks will be the formation of a of chille.11"1;1..it at. the bottom, at wih.lcJi., 'point the movement of particlell ceaSe8, . from wear. the presence of Iltone In the Whereby t ebottom blocks will be glass avoi etl, a;ild a larger proportion of drst-quality be produced." Held. that tile iDcre ..alied de p t.1I of the tank .was/Oll.Iy for :tbe pUrposell here specified, alid elld not, and was not intended to. prodae tor the alleged disoovery of the .o-called "vertidal fining It of the glllSS. . .
.. S.M.-NO'fBlJI'l'-PRIOR ART.
Tb,e11uld layer and Its function aa wellaa the allcending and de800ndlng motion of the particlell, were known In tbe prior state ot the art, as shown in the Gr,nger patent, (1879,) No. 80,623; patent, (llS70,) No. 103,2OS; and the followIngtorelgn pq,tepts to O. W. Siem8ll!'= ,.English, (1tltl8,) No. 1,179; French, (18;6,) fill. 110,125 j Itallal:l, (1877.) ... S.ur....ANTICJPi'1'ION; The patent It"anticipated by the ,!Jelglan patent ot 1877 to O. W. Blemen·· whloh Dot onlf' Ilhowed a tank exoeeding lli}nches in depth, but met eve17 other requirement; 0 the olaimand lIpecificatioDIl.· The 18,90, oomplaioants toproTe that defendant'. furnaoea perform the functlons,covered by the patent, and it Is Itlllufticient to show that theoretically the7 ahould do 1IO,0l! *,erelyliO meet proof. as to the aotual fact.
... &M_INJ'RIN.OBllklfT-BuRDIIN oJ'Paool'.
In Equity. SuitJol' infringement of patent. Bill dismissed. KtJrf' & Curti,land H. Ch:rlsty,for complainants. lama I. Kay and Jiranci8 for defendants. Before BUFFDlGTON, District Judge, and ACHESON, Circuit Judge. District Judge. Tbissuit is brought by George H. BenJamin, in the name of Frederick Siemens, of Dresden, Ge):many, and Alexander Siemens and others, executors and trustees of Sir WiUiam Siemens, late of We!'tminster, England, against the Chambers & McKee Glass Company, of Jeannette. It is for an aJleged infringement of patent right in detimdants' using what are known as "deep-tank" furnaces. The questions to be passed·upon are of grave im.portance, involving, as they do, the right to use for continuous glass melting any tank of a depth of more than 18 inches. In view of its far-reaching results, the case delerves, and has had at the hands of the court, a patient hearing of the able and interesting arguments, and a laborious examination of t:1e testimony and questions raised. A brief resume of glass melting will lead to a more intelligent understanding of the controversy. Formerly glass "Vas melted in pots about 39 inches deep. They were expensive to construct, and subject to frequent breakages, caused by the variations in temperature between the uJeIting and working processes. Theywere charged with batch or materials for making glass, placed in furnaces and
SIEMENS ". CHAMBERS '" M'XEE GLASS CO.
903
subjected to great heat, the batch renewed all the melting went on, until they were filled with molten glass, when they were allowed to cool, and the glass grew stiff enough toW-ork. .'J.'hisintermittent process resulted in loss of time, fuel, and material. .There are four processes in glass making-,-Pirst, melting; second, clarifying or fining; third, planing; and, fourth, working out. The tending of inventive minds for the last 30 years to overcome these difficlllties has been towards tank furnaces. By means of them pots have been dispensed with and a continuous method of working reached, the batch being constantly fed at one end and worked out at the other. In large measure they have revolutionized the glass business. These tanks hold great beds of glass; some of them are 120 feet long by 20 feet wide, and of varying depths, from 2. to 6 feet. Large bricks or blocks,placed at some distance apart, and between which the molten glass can run, form their bottoms. They are placed on pillars or arches, thus forming a cave,through which a cool circulation of air passes, and the molten glass is thus chilled and prevented from escaping through the ci'evices between the blocks. By means of an energetic circulation through this cave, what is called a "chilled layer" may be formed on the upper side of the blocks, which preserves the bricks from the heat of the mass, and the cutting action of the glass in its movement or' flux. In this progresS the Siemens brothers bear a distinguished part. They first applied the regenerative gas furnace to glass melting, and the cave principle was their work. These important features, anll many others, were the results of their inventive genius, were all patented. and presumably they have derived from them the financial returns which their importance demanded. These steps were all prior to 1879. On November 22, 1879, there was granted to C. W. Siemens an English patent, No. 4,763. Based on this patent, an American patent, No. 261,054, dated July 11, 1882, was granted to Charles William Siemens, assignee of Frederick Siemens, for a glass-melting furnace. It is important to note what was asked for and what granted. The claims were: · .. A regenerati v.e gas furnace having a tank of sutticient depth for the purposes described." 8econdly. "The process of melting glass In a regenerative tank furnace, which consists In forming below the upper fluid portion of the metal a layer of metal In a semifluid or pal"tially solid condition, as and for the purpose described." The claim for the process of melting was not allowed. A substituted claim for a tank was allowed, as follows: "A tank for the continuous of glass, having gas and air ports, and of the dt'pth herein uescrlb"ll, for the purpose of below tht' upper fluid portion of the metal a layer of metal in a semifluid or partially solid condition, as and for the purposes described." The eXlIminers in chief, on appeal in this patent, say: that, ·by increasing the depth of the tank toa suffi"The applicant cient degree while maintaining an active circulation of air beneath, the metal under treatment is maintained quite fluid to a depth of about eighteen inches,' leaving it to be inferred that the tank should be considerably d"eper than this, but just how much is not stated. 'rhis vagueness is the d"fect of the whole application, for the first claim turns on the depth herein dellcribed· for ita I
904
FEDEltALREPORTER,
vol. 51.
diitinctivenells, and might be regarded as specific, were the instJ;uctions and ..pe(lific. ore .· , · We believe. that an improvement lies somewhat has done, but we do not find it so clearly and disdisclosed as to be ·distinguished froin what was old,'as the statute tlll{Oires prior to patentability. It is possible that the first claim can be made specific instructions in the specifications. The second claim with our present light, to be merely for the employment of these lJOmewhat deepel' tanks in the old way,-a matter not involving any ),l/),velty .of process." .
i:·Weare· of opinion that the elements lacking in the original claims were notillupplied by the substituted one, and that it is also open tothe same t'.lbjections. Assuming, however, for the present, the validity of the. pat. ent; we turn to theallegeci infringement for which this suit is brought. The argument of complainants' counsel is that up to that time cantin. uc>ustanks had been a failure, and that the Messrs. Siemens. then discovered;and gave to the world in the patent in suit the principle of"ver· tical fining,'! which has turned failure into success. It is a curious fact that the claim of this patent, which is alleged to have revolutionized the glass business, is not being pushed by the Messrs. Siemens, although they are of ample means to do so, but is enforced for his own benefit by Mr. Benjamin, who has acquired their rights. The contention of Mr, Benjarnin t' who is also the principal witness and expert is fr9m the time Messrs. Siemens turned their attention to glass meltinguuti11879, they acted on the theory that the fining of took place 'oliJ the surface. That the object had been to subject the to the heat bath; aUhe flurface. To that end they made ,the tanks broad and sballo#, say' from a foot to 18 inches deep. That about1879 they found this was wrong; that the fining or reactions,.of the particles took playe in tHederoent.from the higher to thelowerlevels, and not at the surface. This new discovery he calls" vertical fining," and says that it was then for the first time learned that depth was a function, and a necessary one, in 'perfectfirling, and that to fine perfectly (in continuous working) a 'deep tank must be used. That in deep tanks a depth of 18 inches of fluid glass could be had in which this" vertiool fining" would take place. Tllat'oeiOw this'the lJ10Venrent orthe particles ceased, and there was then 'fothi'ed on tlie bottom blocks of the tanka. layer of glass in a semifluid or partially solid condition, which served as a covering to protect the l})dttom froni the moving of the glass ind the detaching of portions of the blocks by which glass was spoiled in shallower tanks. That this fery 'of" vertical fining" made the continuous tank a success by turning it into a deep tank, and using depth as a function in fining. . '. The Claim aHowell is for "a tank for the continuous melting of glass, having gas and air ports of the depth described," viz., over 18 inches, "for the purpose' of forming below the upper fluid portion of the metal a lajerM metal in a semifluid or partially solid condition, as and for the This is not a primary patE:nt. Even so far as the Mesl:jrs. Siemens are concerned, it is the last of some 17 patents on con· :tin,uous glass-melting furnaces,ftllditmerely purports to consist in .tain lliodifications in the d,etails of t4e Q:Onstruetion of such furn,aces,
smMENS
v.
CHAMBERS & M'KEE GLASS CO.
905
novel methods of working the same. The semifluid layer was not llew in 1879 in tank furnaces. In fact, this is admitted by Mr. Benjamin, who says: "One of the most radical improvements made in the tank furnace was the substitution by Charles William Siemens of a cooling cave for the air channels under the bottom of the tank. whereby the ventilation was greatly improved. By the use of this improvement. and by the effective cooling of thEl sides of the tanks. they succeeded in forming a of glass upon the sides and bottom. which protected the tank against the injurious action of the heat and glass-rna ing materials." It will be noted that the function of the semifluid layer was well un': derstood to be a protection against the injurious action of the ing materials as well as against the heat. How generally the semifluid, layer was recognized as a fact, how its functions of protecting the tom and sirles of the tank from the two dangerous elements, viz., heat and the C\ltting action of the glass upon them, and that it was recognized not as "an immobile or quiescent fluid," bu t as chilled enough to stand against the side as well as on the bottom of the tank, will be seen by examining Niles Granger's patent, (1872,) No. 80,623; C. W. Siemeris' English patent, (1&68,) No. 1,172; Leuffgen's American patent, (1870,) No. 103,208; C. W. Siemens' French patent, (1876,) No. 110,: ] 25, (in this a fluid layer of six inches is shown;) C. W. Siemens' ian patent, (1877;) and the Glass Maker's Hand Book, (complainants; exhibit.) In fining glass, Mr. Benjamin assumes there are two theories,. -surface finin!(, which, he says, was the accepted theory before 1879;: the other, vertical fining, which he states was first disclosed by the patent in suit. 'I'he differences between them he states as follows: "Assuming that prior to the date of complainants' patent it was believed that glass fined on the surface. became planf'd glass. and sank. Under this theory the depth of the tank is unimportant. because all the chemical actions. take place on the surface. On the other hand. to carry out the theory of the vertical fining of the glass, the question of thll depth of the tank is all important, because such a depth must be gi ven to the tank as will permit the fining to take place in a vertical direction, without the fluid metal being brought into contact with the bottom blocks." The facts and allegations thus stated fairly represent the ants' contention in this case. They contend that prior to 1879 surface fining (i. that glass fined on the surface became planed glass, and sank) was the accepted theory; that by the patent" vertical fining" was set forth, viz., "that such a depth must be given to the tank as will mit the fining to take place in a vertical direction;" in other words, that depth is a necessary function in fining. In both these propositions we are satisfied there is error. The accepted theory in 1879 was not that the glass was wholly fined on the surface, nor does the patent of 1879 set forth the theory of vertical fining, as now claimed by Mr. Benjamin, viz" that depth is a necessary function in fining. The truth lies in neither extreme. The gravitnl action of the pnrticles, that the fined glass sought the lowest zones, that there wer!) ascend. ing and descending currents of glass in different stages of fining, were
e.,
906
'REPORTER,
facts well before the patent in suit. Indeed,.,it. was upon these facts that the, Whole system of conti:piuous tanks was based, as is shown by complainants' exhibit, in which Prof. Stillman, in discussing, in 1884, Engineers, the Siemens patents, before the American including the one in suit; says: . "Thf' fundllillental icea upon which all the Siemens glass patents are based Is found' 'in the cardinal fllct, before overlooked. or not availed of. that. in the meltingorl1ning of glass, there is'an important difference of density in the product in the sUccessive of the process, the tine glass being deuser to the bottom of the pot. while the less refined glass and falling by on.tl)e of the denser glass. bearing with it the ·scum' or ·stone,' so melted. material aild impurities fatal to the beauty and hon:iogpoeity 'of tbe'iinlshed product. The :-iemens bro'thers. with characteristic sagacity. have seized on this' fact, and have developed out of it an enth'ely neW system of glass furnace and glass manufacture, as descriIJed in their patents.", ' In the Itlilianpatent of C. W. ,Siemens (1877) this vertical ,movement oftheglaSSl1nd tbefining during those movements is clearly shown: , "Thec6mpositiO'n meHsgrll.dllaUyin thecompartment.,A, under the inftueilce of tl'1e ileveJopE'd at the surface of the bath. Then, in proportion as,the glass melts,'and is refined; it gains the bottom of the tank. * * * place by the reverberation (if the .heat upon the surface of the bath. bottom is energetically cooled in a constant manner, wben a moJecu'(e ot gl;\ss is fefined at .the surface of the bath, and has consequentlyacquiretl. Ii greater density, it gains the bottom ofthe tank. and is rel'laced at thesiltfltceby a molecuTeof greater density. ,'fhere results from these vertical movements, combined with the 'gem'raladvance movement of tbeglass froto the. cbarging door to the gathel'j ng l1!>rts, a. · pugging: 80 to speak. oftI1E'.glasSnlltss. which imparts to it homogeneousneSs and augments and its .. . What this" pugging" which" results from these vertical movements," itnparts to the gla:sehomogeneousness and augments its fine<I,llaUty,"is, unless. it is vertical fining under the name of "Ptlggillg," ,we Cannot unders,tand. Unless it is this., then some process other louracGeptedones of melting, fining, planing, andgathering has been overlooked in glass making. The same phenomena, and the uses mad,E/ thereof, are also shown in C. W. aIldFrederick Siemens' patent, ,.· No. 127,800, and O. W. Siemens' English patent, It will be observed if depth is a necessary function jnJlniqi, and fining necessarily takes place below the surface, that the patent insuit admits it was then known that fining occurred elsewhere than at the surface, 'for it says: . . "Glass-mf>1ting tanks ha hitherto been constructed under the beJiefthat the " . . of the material takes place aning openl.til)ij at the surface." i Ai fair constrUQUOll ,of this sta,tement is that it was also known that oPElflltion was 110t at the surface, and that it was recognized as a continuousoperltti(;ll1, a "pullging," so to speak, as Mr. Siemens had .four years before staten, in his Italian patent. In the patent in suit Mr. Siemens does not claim depth as a necessary function in fining, lI.S t,Je theory of Mr. Benjamin now is. He admits that the
SIEMENS'll. CiIAMBERS"&M'KEE GLASS CO.
907
fining may take place horizontally, Sel to speak, and that the reactions actually did take place" in the upper portion of the currents traveling towards the working holes." In the deep tank he says it has been found not only possible, but advantageous, to reduce the extent of surface heat, for the reason that" in this case" (that is, in deep tanks) "the reactions occur during their descent;" virtually admitting that if depth were not given that the reactions would take pJace"in the upper portions of the current traveling towards the working holes." A fair construction of this patent shows that, as Mr. Siemens then understood the art, fining could place both at the surface and underlleath it, both in the horizontal and the vertical movement of the partides. We are also of opinion that his object in providing the semifluid layer had no connection with the vertical fining of the glass, but with the gravital action of the particles. Thus he speaks, puge 2, line 33, of patent, of" the reactions of the particles." So, also, in Hne 48. These manifestly reler to the fining process; but at line 56 he begins a new paragraph, and turns to what complainant says is a different thin!!:, (namely, gravital a<;ltion,) and to a new subject, (namely, white as distinguished from dark glass,) and says: ! I "In the fusion of window or other white glass thE're is a ('ontinnous d,,· scending and ascpnding llJo\'emt'nt of tlie particJes(complainants' gravital action) thronghout the mass, as itl 1;'roved by the wplu'ing awa,vof tht' bottoms of shallow tanks. The l\dvltntage to be ol>taim·dlrolll incrt'asing the depth of the tanks Will be the formation of a la.yer IIf chillt'd glass on the tom,. at which point thp of particles (grav.tal attion) ceases, whereby the Lottom blocks will be protpcted from wear. the pretlpnce of stolill in the glass avoided, and a larger propui:tiun of fllst quality of glass be }lrOUllced." From this it will be seen that the semifluid laver WllS to be where "the mO\'emeut of the particles ceases," (i. gravital action,) and had no to the reactions of the particles, (i. e., vertical fining,) and that thtf semifluid layer was-First, for the protection of the bottom bloeks from wear; secondly, the presence of stone in the glass avoided; and, thirdly, the production of a propo;-tion of first-quality glass,three points, all of which had Leen previously protected from gravital action lIy the fluid layer, and both gravital action and the Semifluid layer are confessedly old. It seems incredible that if Mr. Siemens had in his mind, when this patent was granted, the elaborate theflry of vertical fining, as now explained, he should have lIHHle bllt casual allusion to it; that he should make no claim that by laHure to proviJe against it damage was done to the tank, lIut, on the contrary, should specially reler to the damage done by what. is now called "gravital action," and claim the fluid layer as a protection or feature connected with it alone. But, leaving lor the prf'sent the examillation of the semifluid layer in general, it will be seen that, even in continuous tanks of over 18 inches deep, the lorming of a flemifluid layer was not new in 1879. In two patents the use of a tank above that depth and a fluid layer ar.e shown. C. W. Siemens, in 1877, took out a Belgian patent for improvements in glass-welting furnaL' The law of that cuuulry provides, (article 5:) l!.
FEDERAL
vol.
51.
,"Th,e 4rawlnguball be placed in metrical scale; they must represen(, as possible the article to be invented by plans and sections and elevations, " etc. ,., , 'It will be noted that this requirement is not for a drawing to "the metric scale," as contended for by the complainants' counsel, but "to a metriclitl This means a scale" pertaining to measurement." In other words, ,8 scale for measuring from which the article to be invented may reproduced in actual size by enlarging the drawing in proportion to the sca,le,given. In pursuance of the provisions of the act, we find onthe d1'3Wing the French word, "EcheUe, 1-32," in "Scale, This.means the drawing is one thirty-second the size of the arWc)e. invl;lnted. Applying this measurement to the plan, we find the f1;O,lIl. the top of the sill of the, charging door to the top of the bottom;blQcks 9f the melting. tank to pe atleast 24 inches.. Applying the same scale, we find the communication betw!'Jen the melting and wQrking'tl1.nl-: t9 be over 4 above. the bed of the tank, thus leavsOlI}.6,4 inches.forthe seJUifluid layer, and 20 inches for the fluid fUl'I;IaCe IIleets every requirement of the patent in suit: First, a tank for the continuous melting of glass with gas and air ports; aeccmd, it is OVer 18 inchlls in depth, the requirement of the suit; third, it, provides for a cave and system of ventilation, the ··semifluid layer; joorth, it recognizes the vertical movement of the glass. It does not limit itself as to dimensions, stating "the number of ports upon which depend the dimensions of the tank may varyfrbm three to fifteen and upwards." It is a tank furnace cOJilstructed frol;n the plan on the scale designated would perform all the functions claimed in the patent in suit, and be an infringement upon it. Such being the case, the patent in suit ah9u1d not issued later. That Mr. Siemens may not fully the possibilities of the furnace which he thus is nqanswer. This is clearly within the line of Blake v. San 113 U.S. 679, 5 Sup. Ct. Rep. 692, that"The application of an old t>rocess or machine to a similar or analogous subject. with no change in the manner of application and no result Bubstandistinct inlts oature, will not sustain a patent, even .if the new form has not been heretofore "And of Burtv. Evory, 133 U. S. 358, to Sup. Ct. Rep. 394: , ,"But a mere darrying forward·. or a new or more extellded application of the original thought. a change only in form, proportion, or degree, the substitutUm of eqUivalents, doing the Bame thing in the same way, by sUbStantially the same means, with better results, is not such an invention as will sustain II patent." of Niles Granger; No. 80,623, (1868,) is also to be but it is a pot, ,or rather two pots. asa l.anjr and is in substance and fact a continufurnace.. "l\nd the patent in suit to cover "pots ()peratea. as tanks, are always kept full or nEJar1y. full of metal." " . , ,.. . I,· . . ,.
It.may, be!3tlid, this is a pot furnace,
SIEMENS V. CHAMBERS & M'KEE GLASS CO.
909
Granger's device was an ordinary melting pot, 39 inches deep, used as a fining chamber. At the lower end of one side was a chamber leading to a smaller pot or working vessel. Save in its being used in a regenerative furnace, the Granger patent embodied and anticipated the functions of the patent in suit. It is, in the words of the patent in suit, "'0: pot, operated as a tank, which is always kept full or nearly full of metal." It makes use of the semifluid layer, by Granger called "a glaze," and also of the gravital action of the glass. There is much learning and discussion in this case on the subject of "vertical fining." From the evidence and admitted facts, we conclude that the" vertical fining," so called, is nothing more or less than the "vertical finding" by each particle of its natural relative position by reason of its increased specific gravity, caused by the expulsion of gases from such particles by the. influence of the heat. In other words, heat at the surface, aided by the storage heat in the mass itself, causes fusion. Gas is liberated as an effect of heat. Its gradual expulsion, for it is manifestly not catalytic, causes a gradual increase of specific gravity. The particle thus freed or in process. of freeing itself of gas, and with increased specific gravity, will sink and sink until it finds a lever of clesof specific gravity equal to its ownjin other words, its natural relative position. This place may be near the bottom or near the top of the mass. In t1ms finding its naturall'elative place it has displaced some other particle of less specific gravity, and it, in its turn, is driven upwards. The less refined particles are thus driven to the surface, where, under the influence of heat, additionlll fusion takes place, gas is expelled,and the vertical fining again begins. When thoroughly fined and the gases driven out, not by descent but by fusion caused by heat, and it has gained its natural relative place, (i. e., with other particles of thor0ughly fined glass,) no other particle will displace it, for it has reached the imum specific gravity, and it will remain quiescent until drawn towards the working end of the tank to fill the place of refined particles there withdrawn. Such seems to us, from the evidence, to be the process as now understood. To say otherwise is to say that descent is.a necessary function in fining,-is in effect to say that heat does not renne, and that fining can only take place in deep vessels, when the fact that fining does take place in a shanow current is a fact proven by the evidence, and that it takes place in a shallow vessel is a fact admitted by the patent in suit. From the evidence, we cannot find as a fact that vertical fining, as explained by the complainants, does take place. Unless such vertical fining is afiwt,-not a mere theory, but a practical, proven fact,-this patent must fail. This .measure and burden of proof the cOT,hplainants have failed to meet. They have given us their theory of verticitl fining from the facts, but they. have not proven to our satisfaction vertical fining, as they explain it, is an aClual, existing fact. ."'. . . Assuming, however. that the patent in suit must be sustained, the further question arises, have the defendants infringed? The patent. iIi granted on t4e theory that the. fluid depth of glass was 18 inches, and that beneath this was formed Ii. chilled layer of glass; 'not
FEDERAL REPORTER.
vol. 01.
p;2,
wiU be the formation of a ;layet of chilled glass on the surface of the bottom. " , ,
or quiescent glass," as. DOW contended. Thus, in of patent, .. to from' increasing the depth of these tanks
That this was the theory at that time is also shown by the file wrapper in the case; , In the. argument and correspondence for the allowance of the patent Mr. 8ienlens'counsel (and we must, assume he correctly stated the scientific views of his client, .and after full consultation with him, as the granting of the patent was delayed and strenuously contested by the patent office· authorities) relers to the glass" forming below the upper fluid portion of the metal layer in a partially solid condition;" and, in speaking of the depth of the old· tank, says: "It follows that the depth of such tanks CQuhl not exceed about eighteen inches, or, liS is 8110wn in tbe:new application-the bottom would be covered with a layer of chllle(l metal."
These quotations are siIIlplymade to show the idea thenheld\--that to 18'inchell the glass wastiuid, and beneath that the chilled layer necessnrilY'formed. Siemeos wos not then Jamiliar with tanks 'of 5 or 6 feet deep,' for ,none had been built. He was Jl1miliar with ilfluid depth of limited thickness on the top, and with the enerthe chilled layer getic and active cooling by the cave below, by ",as "jormed. With 00 immense bodyofmolten gloss in a tank of 6 feet, andthe storage heut retained by it, he was not, so Jar as the evidence Sh9WS. fomiliar. Upon theory of a fluid depth of 18 inches and the chilled layer as a necessory sequepce. he sought a patelH for tank lllWvrocess. Use, the cr?dial test of theories, has proven its fallac)'. of tank furnaces 5 Illld6 feet deep, andthecollf'leql1ent efi'ects dt' the vast storage heat 'therein; have pr(wed that the cMBed lllyer. by Mr. Sietnens in 1879, does not ill fact t'xistin them, anlt thut' its then contemplated functions, m'e not used in snch tanks. In fa(Jt, the pruCtiClll use of such tanks has shown more hlllical change from ,the ac()epted theory of deep tank melting in 1879 than the suppdsetlthedry at thot tillle did froln the prior state of the art. To gront now upon thefundI<lns perfornled by a tank 6 feet dl'e(> would a be to grant it for an improvement simply in d<'gree, an<l would be manifesHywrong; to grant one in lS79 upon less radical changes and upon theoretical lltatelllents, some of which experience has disproved, was more so. U!Jon the com plainants tests the burden of proot'. They mnst show the, furnaces perform the lundions ot theirs. It will not snfthat theoreticaJl/ they shtmld. It will not do to say thot "glass .in a state of rest," or "immobile fluid glass," correspr.>i1cls to the which wltsthe'theory in 1879. , Itoo\V'llppears, by the deep tanks and the Morage heat in the of glass, a fluid :depth of5 feet may be maintuined, the tl'le"enel'gettc chIllIng, wllwh was before necessary to form the chllled layer, llIld thus preve11t the' uestructive etIects of the gravital motion · , "", ,I . . ·
or
911 of the glass on the bottom of the tank,is restricteli;to simply keeping the glass chilled between the bottom blocks, and this is the only chilling absolutely necessary. Then, too, the weight of the testimony, whatever the facts may be, is that the gravital action of the glass does not extend beyond more than about 5 inches. It will thus be seen that the t'tinction of the chilled layer, which was supposed in 1879 to form below the fluid rlepth of 18 inches, is not needed or used in the deep tanks of the present (lay. Moore, the manager of defendants' works, shows that the glass was fluid in their tanksto the bottom; that he has tested it frequently; that it has sprung leaks 6 or 8 times; that the glass has melted between the blocks; that with an iron bar he had felt the joints between the bottom blocks. The same facts are conceded to be sWorn to by James A. Ohambers. Gustave Bomville has worked a and a 48-inch at 48-inch tank at Charleroi, a 72-inch tank at CohansE1y, N. J., and says the glass is fluid to the bottom in them all. Heha.s put down a bar t.o push back bits of. iron that have fallen in the tank. That sometimes the bar ca tches .in a joint between the bottom blocks. Lemaire, a builder of large experience, has built 12 tank furnaces of 6' feet in depth. He proves he niade a hole in tank at a depth of 5 feet, and the fluid glass ran out; that twice, through accident, he saw tbe glass run out at 3 feet; that he has tested by a bar, and finds the glass fluid to the' bottom,at a depth of 5 feet. From tests and experimentl'lhe finds the glassftuid at 5 feet. It is of importance on this question of the depth. of fluidity to notice his· testimony in regard to the depth of the furnaces. He says they build the furnace 6 feet deep to use the heat more. "I think above six feet the glass is no longel'liqu.id, we build tanks six feet deep to accumulate the heat; while it is wen known that window glass transmits the heat to a depth of about six feet, and the accu.mulated heat remains in the glass, and wehnve through that economy of fuel." (A fact which was also noted uYMr. Siemens in the patent in suit: "By this construction the reduced surface of the tank exposed to flame is accompanied with additional econon1Y of fuel, owing to the diminished surface for loss of heat by conduction.") He says the vertical movement of the glass is not more than 4 iuches; that below that is a quiescent body of glass; that he has observed where they have had a body of bad glllss, and ,have changed the batch, that they had a change in quality, and, calculating what bad been worked out, he found the moving body worked out was but 5 inches thick. The Glassboro tanks are continuous deep tanks, though worked intermittently on account of the limited number of blowers employed. No. 1 was 12 inches deep in the melting compartment, and 18 in the working out, and No.2 was 36 inches in the melting, and 24 in the working. the manager, says they are both fluid; that he has drilled holes through the side and once through the bottom, and both times the tank ran empty. The openings between the tanks were 5 inches square, thus showing in No. 2aflllid depth of 31 inches; that No.2 was made deeper simply for capacity, and that depth had no function in the quality of the glass. The glass was substantially of the same quality
91a
n:DERAL RICPOBTEB,
JnUle new, thus showing that fining can be as complete at 12 al! at 36 inches. Substantially the facts are proven by John P. Whitney, proprietor of the works, with the additional fact that in their tank No., 9 a boot leg is employed with openings at bottom one inch deep and the shape, of a caret. This shows a clear fluid depth of 24 inches. Testimony in contradiction of some of these points has been produced by the complainants. The very most that could be argued for it is that it the proofs of the defendants. But this will not do. Inalleged. To merely meet the proofs of the defendants is to lejl,¥e the question in the balance, and that is to decide against the of proof being on the complainants, we are pomplainants. The the weight of evidence is against them and in favor of the de(enQ""nts. OtUQonclusions, briefly stated, are-Firat. The fluid layer and its worked deep tank were known before this function in a. granted. Second. At that time the gravital action of glass patent 'Uld the reactions taking place during such movements were known; and no hither,to unknown a9:d ,now known movement, action, or in th4;l melting of glass were disclosed in the patent iIi suit. Third. That the,contention of compM4pants that depth is a necessary function in the fining of glass is pot established by the weight of the evidence. Fourth. That it is not shown that .in defendants' tanks the functions. of forming "below the, upper fluid portion of the metal a layer of metal, in a semifluidol' partially solid CC;>Iildition," as claimed in the patent, is used. The weight ofthe evidence is to the contrary. Fifth. In view of the state of the art at. the date of this patent, the claim granted was not then patentable, and the letters patent No. ,261,054 are invalid. Sixth. That the burden of proof of infringement is on the complainants, and this have failed to meet,. and thtl bill must be dismissed, at their cost. ACHESoN,Circuit Judge, Concurs.
iD.. b9th, though the melting chamber of the old was 12 inches as against
BllOMLEY
B,R()8.
CARPET
Co.
It. STEWART el
aL
(Cweu(t Coun, E. D. PennBt/1IMnf.a. JUly I, 1899.)
1.
P,j.TlI1I'Tll J'()B IJlVBlI'TIONll":"hfvBNTION-MJlOJl,j.!l'JOAL AD.LP'UTION-LooM&
.. ,Fl.rst claim of llatent No., 418,849 to Bromley, Jr., a power loom pro1ided with a double shuttle 'box on each SIde thereof, mechanism for operating said boxell piok lind pick, and a mechanism which stops the loom after every two picks, does not embrace patentable novelty, in view of the faot that all of the elements were old, in exactly the conneotion in which they were used, except the stopping mechanism, which was adapted by a obVious ohange from a olosely analOgous construction· The 11600nd olaim of patent No. 418,84.9, to Thomas Bromley\ Jr., for the combinationl with a mechanism which stops the loom after every two shots of weft, of II mecnanism which may be started by the foot, does not embrace patentable DOvelty,
.. SAMB.