Lowry v. Cowles Electric Smelting & Aluminum Co.

TAFT, Circuit Judge, (after stating tbe facts.) Tlie issue which the plea tenders is that by the agreement of May 18, 1885, Bradley, before his assignment to complainant, conveyed to the Cowles Company the patents claimed by the complainant. Whether the plea is good, or not, depends upon the construction of the agreement of May 18, 1885, in the light of the facts averred in the plea. The first objection made to the claim of the defendants in. the plea is that the agreement is between Crocker and Bradley, and purports to convey discoveries, inventions, applications, etc., which they jointly own, whereas the application, whereon the patents set up in the hill were issued, was an application in the name of Bradley alone, and the patent was issued to Bradley alone. It is quite clear, under the authorities cited by complainant, that, if the surrounding circumstances call for such a construction of tlie assignment as will include in the transfer patents held hy Bradley alone, the language of the contract may he so construed. Co. Litt. 197a; Justice Windham’s Case, 5 Coke, 7b; Wharton v. Fisher, 2 Serg. & R. 182; Williams v. Hadley, 21 Kan. 350; Judd v. Gibbs, 3 Gray, 539; Von Wettberg v. Carson, 44 Conn. 289; Coffin v. Douglass, 61 Tex. 406; Shoe Co. v. Ferrell, 68 Tex. 638, 5 S. W. Rep. 490; Bank v. Beede, 37 Minn. 527, 35 N. W. Rep. 435. If, as alleged in ilie plea, there was only one patent application then on file in the name of Crocker and Bradley, the use of the plural would indicate that the assignment was intended to carry other patents; and, as other patents were in the name of Bradley alone, it would he a reasonable inference that the assignment was intended to carry Bradley’s patent, also. Before the plea can he sustained, however, it must also appear that the patents claimed hy complainant are for discoveries in electric smelling processes and furnaces, which did or might interfere with any applications for patents made hy Eugene H. and Alfred II. Cowles, of Cleveland, Ohio, pending in the patent office at the date of the assignment, May 18, 3885. The plea makes all these patents, hy reference, a part of it. It is averred in the bill that no invention of Bradley and Crocker, or of Bradley alone, except the one mentioned in the assignment itself, did interfere with any of the patents issued on the applications of the Cowles brothers, then pending in the patent office. The Cowles brothers [493] got their patents, and Bradley got his. The prima l'acie jiresuniption from this result is that the Bradley patent could not interfere with the applications for the Cowles patent, and in order to make their plea good the burden is on the defendants to show, from the patents, or their file wrappers and contents, that there might hare been such an interference. Bradley says of his invention, in his specifications: ■'My invention relates to a process of effecting, by an electric current, tlio separation or disruption of aluminum from its ores or compounds, or the disruption, in a similar manner, of other like highly refractory metallic compounds, of which aluminum may bo considered a type, and which have been classed together by reason of the great difficulty in their reduction.” He then says that previous to the invention the process liad been carried on by subjecting the fused ore to the action of the current in a crucible, placed in the heating furnace, but that this external heat had interfered much with the usefulness of the process, by injuring the crucible. He then says: “The main object of my invention, therefore, is to dispenso with the external application of heat to the ore in order to keep it fused. In order to accomplish this object 1 employ an dearie current of greater strength or intensity than wlia t would be required to produce the electrolytic decomposition alone, and 1 maintain the ore or other substance in a state of fusion by the heat developed by the passage of the current through the melted mass, so that by my invention the electric current is employed to perform two distinct functions; one of these being to keep the ore melted by having a portion of its electrical energy converted into heat by the electrical resistance offered by the fused ore, and the other being to effect the desired electrolytic decomposition, by which means tlio heat, being produced in the ore itself, is concentrated at exactly die -point where it is required to keep the ore in a state of fusion.” Again, in his sx»eciilcations, he says: “in order to fuse the mass at the start, I take two electrodes of a suitable mal erial, such as already used in like processes where fusion has been effected by an external heat, and connected, respectively, to the two poles of a dynamo-elec trie machine, or other source of current, bring the said electrodes into contact, separate them sufficiently' to form an electric arc, and then thrust them info the bottom of (he cavity or basin, where the on; soon fuses by the heat of the arc, and becomes a conducting electrolyte, -through which the current from the electrodes continues to flow. The arc, of course, censes to exist as soon as there is a conducting liquid — the fused ore — between the electrode's, and the passage of the current then takes place through the fused ore by conduction, and the heat is produced as it is in an incandescent lamp. The arc is merely used to melt Uie ore in the beginning, and the ore is kept melted by incandescence, so to speak; the metallic aluminum being gradually deposited at the cathode, and the fluorine gas set free at the anode, so long as the ore is maintained in a state of fusion,” Bradley’s other patent is for the plan of effecting fusion and electrolysis in a heap of ore without the use of any crucible, by making a cavity in the ore itself, and fusing the ore progressively from the center outwardly; but, as that is not important here, we may give it no further attention. All the Cowles patents are for processes for smelting ores by electrical currents. Patent Ho. 819,795 was the first of the patents referred to in the plea. The patentee says: “'Che present irueution relates to the class of smelting furnaces which employ an electric current solely as a source of heat. Heretofore it has been [494] attempted to reduce ores, and perform metallurgical oxierations, by means of an electric arc; the material to he treated being brought within the field of the arc, or passed or fed through it.” The difficulties in that operation are then described. The pat-entee proceeds: “The object of my invention is to provide a process by which electricity can be practically employed for metallurgical operations, and for this purpose to secure a distribution of the intense heat which it is well known electricity is capable of generating over a large area, or through a large mass, in such a manner that a high temperature can be sustained for a long time, and controlled. To this end the invention consists, essentially, in the use for metallurgical purposes of a, body of granular material of high resistance, or low conductivity, interposed within the circuit in such manner as to form a continuous and unbroken part of the same, which granular body, by reason of its resistance, is made incandescent, aid generates all the heat required. The ore or light material to be reduced — as, for example, the hydrated oxide of aluminum, alum, chloride of sodium, oxide of calcium, or sulphate of strontium — is-usually mixed with the body of granular resistance material, and is thus brought directly in contact with the heat at the point of generation. At the same time the heat is distributed through the mass of granular material, being generated by the resistance of aE the granules, and is not localized at one point, or along a single line. The material best adapted for this purpose is electric light carbon, as it possesses the necessary amount of electrical resistance, and is capablfe of enduring any known degree of heat, when protected from oxygen, without disintegrating or fusing.” Tbe patentees then describe the art of reducing zinc, which, is by distilling the zinc, and condensing the zinc fumes in the condensing chamber: “In the reduction of an ore composed of a nonvolatile metal, or a metal which is not volatilized at the heat generated in the furnace, the .metal remains in the furnace, mixed with tho carbon filling the interstices between the grains, while the gases produced pass off.” The claims of the patent are for the method of reducing ores by subjecting the ore,, in the presence of a reducing agent, to the action of heat generated by passing an electric current through the body of broken or pulverized resistance metal that forms a continuous part of the electric current; the ore being in contact with the broken or pulverized 'resistance material, whereby the ore is reduced b’v the combined action of the resisting agent, and of the heat generated solely by the resistance of the broken or pulverized body through its mass. Patent 319,945 is for apparatus by which this is to be accomplished. Patent 324,659, to Cowles, Maybury & Cowles, is for an improvement on the foregoing processes, to overcome a difficulty in their practical operation caused by the tendency of the aluminum to take up, chemically and mechanically, a considerable amount of the granulated carbon. The improvement suggested consists in reducing the ore of aluminum, in connection with some other metal which will alloy with the aluminum, and then subsequently separating the alloy metal from the aluminum by amalgamation or equivalent process. The alloying process prevents the taking up of carbon. Patent 324,659 is a mere improvement on the original process meñtionéd in 319,795, for the production of the alloys, bronzes, and [495] metallic compounds. .Patent 335,058 to Alfred II. Cowles, for an improvement in an electric, furnace, and the method of operating the same, is for the same device, substantially, (with changes and improvements immaterial here,) as that described in the original Cowles patent. Buck examination of the specifications as I have been able to give, with m,v limited knowledge of the subject, does not satisfy me that the Cowles patents and the Bradley patent did or might interfere. The Bradley patent was for a process of electrolysis in which the heat necessary to fuse the refractory ores into the liquid state required for electrolysis was produced by the resistance to the current in the fused electrolyte. Tint current is carried, and is intended to be carried, by the fused ore. The Cowles patents are not intended to disrupt aluminum compounds by electrolysis. They are intended to produce an intense heat, and apply it to such compounds in the presence of a reagent, and by the joint effect of the heat and the chemical action of the reagent to separate the compound and its elements, just as iron and other ores are smelted in a furnace. The gist of the Cowles invention is the use of the granular carbon distributed through the mass of granulated ore to carry the current from one electrode to another, and by its low conductivity and resistance to produce intense heat, not at a single point, or in a single line, but throughout the ore, and to maintain it constant. It was not the purpose of the Cowles brothers to cany the current with the ore, but with the carbon. Previously the current had been carried by the air, making an are. The Cowles brothers, substituted, for the air, carbon. But it is said the ok necessarily carried the current in the Cowles process, and that electrolysis therefore was also 'present; that Ibis was not, known at the time the patents were taken out, and that this was not, therefore, claimed, but that the Cowles brothers might have claimed it in their palmus; and Hint, therefore, the Bradley patent and the Cowles patents covered the same ground, and might have interfered. Whether the Cowles pat mils necessarily involved electrolysis is a matter of scientiiic fact, and a fact which could not, very well be averred in a plea. The eons (ruction of patents, and a determination whether (hey interfere, is a, mi.veu question of law and fact, depending upon the construction of specifications and claims and the scientific or oilier facts which determine the meanings of those claims, and their effect. I do not now hold that the Bradley paient may not be shown by expert, evidence to cover such ground that it did or might have interfered with the Cowles patents, but I do not now find any facts averred in the plea, or apparent to me, without scientiiic knowledge, from the record, that justify me in saying so. The defenses should be made by answer, and then, upon the evidence to be taken, the question can be determined as in an ordinary patent suit. Pleas should properly tender a definite issue, and while the issue here is definite and .single, namely that the assignment of May 8, 1885, covered the .Bradley patent, it, is hardly possible to make an averment with reference to the interference of the Bradley and Cowles [496] patents which, will not be an averment both of law and of fact. Such averments make bad pleas. The plea will be overruled, with leave to the defendants to answer.