U.S. Supreme Court
Freeman v. Asmus, 145 U.S. 226 (1892)
Freeman v. Asmus
Argued April 20-21, 1892
Decided May 16, 1892
145 U.S. 226
The first claim of reissued letters patent No. 3204, granted to George Asmus, November 24, 1868, for an improvement in blast furnaces, on the surrender of original letters patent No. 70,447, granted to F. W. Lurmann, of Osnabruck, in Prussia, November 5, 1867, namely, "A blast furnace with a closed breast, where the slag is discharged through an opening or openings cooled by water, substantially as set forth," is invalid because there was nothing in the original specification indicating that any such claim was intended to be made in the original patent, although the application for the reissue was made less than a year after the original patent was granted, and because, as respected that claim, the reissue was not for the same invention as the original patent, and was therefore within the express exception of the statute (Act of July 4, 1836, c. 357, § 13, 5 Stat. 122).
The cases in this court on the subject of reissues, reviewed.
The fact commented on, that the application for the reissue was not signed or sworn to by the inventor, but only by the assignee of the patent.
The court stated the case as follows:
This is a suit in equity, brought in the Circuit Court of the United States for the Eastern District of Pennsylvania by George Asmus against Margaret C. Freeman, founded on the alleged infringement of reissued letters patent No. 3,204, granted to said Asmus, November 24, 1868, on the surrender of original letters patent No. 70,447, granted to F. W. Lurmann, of Osnabruck, in Prussia, November 5, 1867, for an improvement in blast furnaces.
On the 12th of July, 1867, Lurmann assigned to Asmus all the right, title, and interest in and to the improvement for which Lurmann was about to apply for a patent, and the specification for which was signed by him on that day. The patent was granted to Lurmann, although the assignment was recorded in the Patent Office sometime before the granting of the patent. chanroblesvirtualawlibrary
On the 3d of November, 1868, Asmus filed in the Patent Office a petition signed by himself, but not signed by Lurmann, praying for the reissue of the patent. In that petition, Asmus stated that he believed that the original patent was inoperative and invalid by reason of a defective specification, which defect had arisen from inadvertence and mistake, and he asked that a new patent might issue to him for the same invention, for the residue of the period of the original patent, under the amended specification therewith presented. The oath annexed thereto, made by Asmus, was sworn to October 24, 1868, and stated that Asmus verily believed that, by reason of an insufficient or defective specification, the original patent was not "fully valid and available to him," and that the error had arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention. Accompanying the petition and oath was a statement signed by the attorneys for Asmus, which said:
"The errors and defects occurring in the original specification by inadvertence and mistake, and sought to be corrected by this application for a reissue, are as follows: the invention, as described in the original specification and represented in the drawings, clearly comprises a blast furnace with a closed breast, where the slag is discharged through an opening or openings cooled with water, but the claim in the original specification is confined to a slag-discharge piece or cinder block constructed and attached in a certain specific manner. It is obvious that the cinder block, D, can be connected to or cast solid with the plate, C, without changing the nature of the invention, and in the new specification this defect has been corrected, and a clause has been added to the claim with the view to cover the whole ground of the invention."
The answer of the defendant denies the novelty of the invention, the alleged infringement, and the validity of the reissue, and assigns as grounds of such invalidity that the application for the reissue was not assented to, signed, or sworn to by Lurmann; that the reissue was for an invention different from that claimed in the original patent, and that the reissue contains much new matter interpolated by Asmus. Several other defenses were also set up. chanroblesvirtualawlibrary
With a view to a comparison of the specification of the original with that of the reissue, the following paper contains both of the specifications, the parts in italics not being found in the original, and the parts in brackets not being found in the reissue:
"Be it known that [I.] F. W. Lurmann, of Osnabruck, in the Kingdom of Prussia, [have] invented a new and useful improvement in blast furnaces, and I, George Asmus, of the city, county, and State of New York, assignee of the said F. W. Lurmann, do hereby declare [that] the following [is] to be a full, clear, and exact description thereof, which will enable those skilled in the art to make and use the same, reference being had to the accompanying drawing, forming part of this specification, in which drawing Fig. 1 is a vertical central section of a furnace [to which my improvement is applied] built according to this invention. Fig. 2 is a horizontal section through the tuyeres. Fig. 3 is a front elevation of the slag-discharge piece or cinder block detached. Fig. 4 is a vertical section thereof [of the latter, also detached.] Similar letters indicate corresponding parts."
"This invention relates to [furnaces for smelting iron ore, and has for its object to dispense with the 'tymp' or fore-hearth and the 'wall stone' now in common use in iron blast furnaces, and to replace the tymp arrangement by such a construction as allows the slag to] certain improvements in blast furnaces with a closed breast, and it consists, principally, in a blast furnace with a closed breast, where the slag is discharged through an opening, cooled with water, in such a manner that the tymp or fore-hearth and the wall stone can be dispensed with, and that the slag can be tapped directly from the hearth. It consists, further, in a slag-discharge piece or 'cinder block' of peculiar construction, as will be hereinafter more fully explained, whereby the building of a furnace according to this invention and its correct operation are materially facilitated. In order to enable those skilled in the art to fully understand the object of this invention, I will first point out the disadvantages of blast furnaces with a fore-hearth, such as are now in common use for melting iron ore. In such [the tymp arrangement]
furnaces, the slag is driven out [of the furnace] by first being [being first] forced below the tymp stone, which projects below the level of the tuyeres and intercepts the currents of air and prevents their escape with the slag which stands in the [tymp] fore-hearth at the same level as on the hearth, the slag being discharged only when it rises in the [tymp] fore-hearth high enough to overflow the top of the wall stone that forms the bottom of the discharging orifice. By this arrangement, the tymp stone constitutes a trap, which intercepts the currents of air and causes their pressure to be exerted directly on the surface of the slag on the hearth. This method of construction has several disadvantages, one ofses their pressure to be exerted directly on the surface of the slag on the hearth. This method of construction has several disadvantages, one ofses their pressure to be exerted directly on the surface of the slag on the hearth. This method of construction has several disadvantages, one of which is the difficulty of keeping the tymp stone and the surrounding parts in repair; another is that the pressure of the currents of air or wind is limited [and counteracted] by the counter pressure of the column of slag in the [tymp] fore-hearth, and another is that, one side of the furnace being occupied by the [tymp] fore-hearth, no tuyere can be applied on that side, and consequently the supply of wind is irregularly distributed. By the improvement which constitutes the subject matter of this present invention, these disadvantages are overcome [My invention avoids or overcomes these disadvantages] in a simple and effective manner."
"In [this example of my invention] the drawings, the letter 'A' designates the furnace, and 'B' several tuyeres, which are arranged therein at a proper height. The furnace is constructed with a closed breast, [My furnace has no tymp,] and the sides of the hearth, whether round or square, extend clear down to the bottom stone, the usual opening, (not shown in the drawing), being made in the lower part of the hearth for the discharge of the iron. The openings for the tuyeres, B, are distributed at equal distances apart in the sides of the hearth. At a suitable height from the bottom stone [I leave] an opening is left in the hearth, in which [I place] is placed a cast-iron or brass slag-discharge piece or cinder block, D, which is cast or made with numerous channels or pipes running up and down or in other directions through it, as shown in Figs. 3 and 4. The cinder block, [piece,] D, [is] may be
formed with a dovetail on its upper end, which is fitted into the bottom of a stationary metallic plate, C, connected with the furnace, or it may be attached to said plate in any other desirable manner, or cast solid with the same, it desired. [The] This plate [C] is also cast or made with channels or pipes running through it, and the channels or pipes of said plate and of the cinder block, [piece,] D, may be so arranged as to connect or communicate with each other when the plate, C, and cinder block, [piece,] D, are in their proper position, [positions,] or they may be independent of each other. In the drawing the plate, C, is Shown above the cinder block, but it may also be placed below, or in any other desirable position in relation to the same. The object of the [said] channels or pipes is to permit the plate, C, and cinder block [piece], D, to be cooled by forcing water through them while the furnace is in operation, proper connections being made for that purpose with a reservoir of cold water or with a force pump. One or more holes are made in the [said piece,] cinder block, D, through which the slag is discharged, the shape of said holes being shown in Figs. 3 and 4, the middle portion being cylindrical, but each end being conical or flaring. The dimensions of the [slag-discharge piece] cinder block are a little less than the opening in which it is placed, and the space left around it is filled with sand, which can be readily removed in case it is desired to remove the block, D, to repair it, or if it is desired to have an opening in the hearth to work through, as when any irregularity in the smelting process has taken place. The flow of the cooling water through the [slag-discharge piece,] cinder block, D, is regulated for the purpose of controlling the discharge of the slag through it. By allowing much cooling water to circulate through its water channels or pipes, the temperature of the block, [piece,] D, is lowered sufficiently to allow a coating of slag to adhere and choke its discharge openings, which are of less diameter in the middle than at their ends. By reducing the flow of cooling water, the cinder block [piece] is allowed to retain a higher temperature, and in consequence the slag is melted out of the discharge openings, and they become clear and open, and permit the slag to flow
without interruption. When the slag in the hearth is [lower than] below the level of the discharge openings, the latter are simply closed by an iron plug [rod]. [My] This invention can be easily applied, by those skilled in the art to which it belongs, to blast furnaces of the common construction, by removing the fore-hearth, and closing the aperture left in the breast of the furnace under the tymp stone by inserting the plate, C, with the cinder block, D. [This invention is attended with several advantages over the common method of constructing or arranging furnaces, among which I mention the following:] The principal advantages derived from this invention are as follows: First, it permits a higher pressure of wind. Second, the hearth is preserved in better condition than where the common mode of construction is retained. Third, the labor of the operation of smelting is lessened. Fourth, it allows one more side of the hearth for a tuyere. Fifth, it avoids the stoppages of the wind supply, now necessary as often as the iron is discharged. Sixth, a considerable increase is gained in the product of the furnace, while at the same time the cost of labor and repairs is lessened."
"Having thus described this invention, [What] what I claim as new, and desire to secure by letters patent, is --"
"1. A blast furnace with a closed breast, where the slag is discharged through all opening or openings, cooled by water, substantially as set forth."
"[1.] 2. The slag-discharge piece, or cinder block, D, constructed and arranged substantially as described."
"[2.] 3. The [slag-discharge piece,] cinder block, D, in combination with the plate, C, to which it is fitted, [attached,] substantially as described."
"[3.] 4. The shape of the discharge opening or openings of the cinder block, [piece,] D, being made flaring at its ends, and of diminished diameter in the middle or central part, substantially as described."
"[4.] 5. The combining [Combining with] of the slag-discharge piece or cinder block with a series of water channels or pipes, substantially as and for the purpose above set forth. "
"[5.] 6. Combining with the metallic plate, C, a series of water channels or pipes, substantially as and for the purpose set forth."
"[6.] 7. The method of controlling the discharge of slag from blast furnaces by regulating the temperature of the slag-discharge piece or cinder block, substantially as described."
"This specification signed by me this [twelfth day of July, 1867,] 24th day of October, 1868."
"[F. W. LURMANN] George Asmus"
After a hearing on pleadings and proofs, the court entered a decree on the 19th of July, 1886, adjudging that the reissued patent was valid; that the defendant had infringed its first claim, and that the plaintiff was entitled to recover profits and damages and referring it to a master to ascertain the same. The opinion of the circuit court was given May 14, 1886, and is reported in 27 F.6d 4. On the report of the master, 34 F.9d 2, a final decree was made by the court October 12, 1888, awarding to the plaintiff $1,000 damages, and the costs of suit. The defendant has appealed to this Court. chanroblesvirtualawlibrary