subsequent time upon the payment" of the sumption of the strongest nature that there purchase price. This was the exact content of the formal written agreement between bankrupt and its vendor, and the use of the phrase "on consignment" on a subsequent informal memorandum of delivery cannot vary the scheme of business upon which the minds of the parties met and adhered to in a manner totally inconsistent with a consignment, for some months after delivery. The order made below was based upon a failure to observe the change in the New York act made by the above-cited statute of 1922. It is now the law (section 65) that "every provision in a conditional sale reserving property in the seller shall be void as to any creditor of the buyer, who without notice of such provision acquires by attachment or levy a lien upon them, before the contract shall be filed." The corresponding section in the act of 1909 made unrecorded conditional sales void only "as against subsequent purchasers, pledgees or mortgagees in good faith," and this court decided In re Remson Mfg. Co., 232 F. 594, 146 C. C. A. 552, when the state law so stood, and held that since the trustee at most, under section 47a of the Bankruptcy Act (Comp. St. § 9631), merely stood "in the shoes of an attaching creditor," his right could not prevail. [3] But the present Sales Act makes the sale absolute in favor of any creditor who "acquires by attachment or levy a lien" before contract filed. And since a trustee under the Bankruptcy Act may "as to all property in the custody [of the court] be deemed vested with all the rights, remedies and powers of a creditor holding a lien thereon," this trustee in bankruptcy falls exactly within the language of the state statute. In re Seward Dredging Co., 242 F. 225, 228, 155 C. C. A. 65. It remains, however, to inquire whether under the state act the trustee, although a creditor and having a lien as by attachment upon these chattels, is a creditor "without notice of such provision" for retention of title in the vendor. No evidence was offered below on this point. [4] It is to be observed that, since the goods were in the custody of the court below and of the trustee, the vendor was in the position of a plaintiff. The very existence of bankruptcy proceedings produced a pre were creditors, and by every principle of procedure the burden of proof lay upon the man seeking reclamation to show that he came within the statutory provision of notice. We perceive no difference between one who demands property at the hands of the trustee in the way Benerofe did and any other petitioner in reclamation; it is his duty to bear the burden of proof. Let it be assumed that, if all the creditors of this bankrupt knew that this sale was conditional, the petition below should prevail, it remains true that the trustee has the right of any creditor, and the burden is on the conditional vendor to prove no creditor was without notice. No effort was made to make this proof. The general rule, with copious citations, is given in Remington (3d Ed) vol. 4, § 1578, to the effect that, where filing of conditional sale contracts is required by statute to preserve rights as against creditors, unfiled agreements are void against the trustee in bankruptcy, and In re Bazemore (D. C.) 189 F. 237, 239, is express authority for holding, as we do, that the burden of proof was on petitioner below, to show notice. Order reversed, with costs. HAND, Circuit Judge (concurring). I agree that the case should be reversed, because it was clearly tried under a misunderstanding of the statute, and because the point as to burden of proof was not raised in season, but it seems to me that the burden of proof should be upon the trustee. Prima facie, the conditional seller shows title, though it is void by statute against a creditor who attaches without notice, if the bill of sale is not filed. Such a statute seems to me to create a defense altogether analogous to that of a bona fide purchase. So far as I know, that has always been held to be matter which must be proved affirmatively. Perhaps, if the trustee shows that any creditor was without notice, the sale may be void as to all, but it does seem to me that he must show at least as much as that. Under the rule laid down by my brothers, unless the conditional seller shows that all the creditors had notice, he loses, and it will usually be impossible in practice for him to prove so much. Judge Kennedy seems to me to have stated the correct rule in this respect in Re Douglas Lumber Co. (D. C.) 3 Am. Bankr. Rep. (N. S.) 67, 2 F. (2d) 985. 7 F.(2d) 13 UNITED VERDE COPPER CO. v. PEIRCE- (Circuit Court of Appeals, Third Circuit. and awarded an injunction and accounting. Peirce-Smith Converter Co. v. United Verde Copper Co. (D. C.) 293 F. 108; Id. (D. C.) 298 F. 763. The case is here on the respondent's appeal. The invention of the Smith patent is a process for bessemerizing copper matte in a converter having a non-corrodible lining. As no one can have an approximate understanding of the purpose and position of the invention without some knowledge of the art in which it stands, we shall describe the art very briefly and state one of its problems. Copper matte is the product of smelting copper ore in a furnace and consists almost entirely of a mixture of iron sulphide and copper sulphide. It requires further treatment to break up and remove the iron sulphide (FeS) and then convert the remain 3. Patents 36 General use and utility ing copper sulphide (Cu2S), which is called speaks for invention. The Smith patent, No. 943,280, for process of bessemerizing copper matte, held not anticipated, valid, and infringed. Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge. Suit in equity by the Peirce-Smith Converter Company against the United Verde Copper Company. Decree for complainant, and defendant appeals. Affirmed. For opinion below, see 298 F. 763. Charles Neave, Edward L. Blackman, and Maxwell Barus, all of New York City, for appellant. William H. Davis, Livingston Gifford, Merton W. Sage, and John F. Neary, all of New York City, for appellee. Before BUFFINGTON and WOOLLEY, Circuit Judges, and BODINE, District Judge. WOOLLEY, Circuit Judge. This is a suit for infringement of Letters Patent No. 943,280 granted to Elias A. C. Smith in 1909 and afterward assigned to the plaintiff. Claims 1, 2 and 3 are in issue. The District Court found these claims valid and infringed "white metal," to metallic copper. This treatment is known as bessemerizing or "converting" copper matte. Copper matte, therefore, is in a sense an "intermediate." Bessemerizing is carried on in a large vessel a converter-into which the molten matte and a quantity of silicious flux are placed and involves blowing air in large volumes through the molten matte so as to burn out or oxidize the sulphur and iron. The oxygen of the air unites with the sulphur in the copper sulphide and in the iron sulphide of the matte to form oxidized sulphur which is a gas (SO2) and readily goes off in that form. But the oxygen of the air also unites with the iron in the iron sulphide of the matte, thus forming oxidized iron (FeO) which is not a gas and is more troublesome to get rid of. In order to remove it, a silicious or so-called "acid" flux is used, the silica (Si2O2) of which unites with the oxidized iron (FeO) to form a liquid ferrous silicate slag that can from time to time be "skimmed" off the surface of the bath or can be poured off by tipping the converter. In this way the iron is extracted. That part of the silicious flux which is not silica forms no chemical combination with the converter content. It is chemically inert. It absorbs heat, is melted and such matte-forming constituents as it may happen to have, such as copper, iron, gold or silver, are added to the matte. Its earthy constituents, such as alumina, lime and magnesia, are carried off with the slag. The bessemerizing operation proceeds in two stages-the first, the slagging stage, during which the silicious flux is added and the iron and part of the sulphur are eliminated from the matte, leaving copper sulphide "white metal"; and the second, or finishing stage, in which by further blowing in of air without flux the elimination of the residue of sulphur from the matte is completed, leaving "blister" copper. The claims in issue of the patent in suit deal only with the slagging stage. The converter in which these chemical or metallurgical reactions take place is a large vessel, and, in order to provide the requisite structural strength and to admit of the requisite tipping operation, it is made of steel. But it was known that the slag of the bath when in contact with the steel speedily attacks and destroys it. So, from the very beginning, a lining was placed inside of the shell. Three types of such lining have been known and used. As their place in the art has an important bearing on both the issues of validity and infringement in this suit, we shall not describe them here, but shall speak of them later and in the order in which they appeared in the art. We shall now only indicate that in each type a lining of magnesite brick, which is incorrodible in the sense of not being as readily attacked by the molten contents of the converter as other brick, is laid against the inner wall of the steel shell. In the first type of lining, used for a long period just prior to the invention in suit, there was a thick coating of silicious, or so-called "acid," material placed on the face of the magnesite brick and held there by plastered clay. The molten contents of the converter came into contact with the silicious coating which, together with additional silicious material thrown in through the converter mouth during the operation, furnished the silica to unite with the liberated iron of the matte in forming the fluid slag. The acid coating, as intended, was readily consumed during the slagging stage of the converting operation-carried on at 2200° to 2350° F. and had to be renewed at much expense and delay after converter operations of only a few hours and after a copper production of only about fifty tons. Taking their name from the acid coating of the magnesite lining, converters of this type were known as "acid" converters. Except for certain basic converters alleged as anticipations and basic converters used experimentally, acid converters constituted the entire prior art of the patent in suit. It had long been realized by workers in the copper smelting art that an acid converter was wasteful and costly in operation and that if a true non-corrodible basic converter could be made (that is, one lined only with magnesite brick and where all the flux would be supplied through the mouth of the converter) and if such a converter could be made to stand up and endure, great economies would be effected and increased production obtained. But the trouble was that an unprotected basic lining yielded quickly to the attack of the molten mass within. Almost continuous attempts for nearly thirty years had been made to bessemerize copper matte in basic lined converters, yet entirely without sucSmith, the patentee, in collaboration with Peirce, began work on the matter in 1901. At first they regarded the problem as mechanical rather than chemical and overcame certain mechanical difficulties incident to basic-lined converters by improvements described in the patent awarded them in December, 1909 (No. 943,346). But they found that notwithstanding these mechanical improvements the basic lining yielded to attack by the slag very much as before. Smith then directed his attention to the metallurgical aspect of the problem and in the course of time made discoveries from which he conceived the invention of the patent in suit. cess. Smith did not try to revolutionize or even to change the prevailing bessemerizing process. He took the process as he found it and sought to practice it in a way that would permit the use of an unprotected basic lining in a copper converter and save it from immediate destruction. In doing this he was confronted by certain fixed factors. He knew that one of the purposes of the converter operation is to eliminate the iron from the matte; that iron must be eliminated and run off in the form of slag; that in order to get the iron in that form, silica must be employed to combine with the iron; that, as the use of pure silica is not economical, the requisite silica for that purpose is obtained from some cheap and available material known to contain it; that silica in such material is always combined with other ingredients, some of which may be valuebearing and most of which are not valuebearing; and that this combination material, called a "flux" and which is used only for its silica content, contains silica in varying proportions. He found that the varying proportions of silica in the flux affected in varying ways the character and the temperature of the ferrous silicate slag in the converter and he discovered that to insure an effective operation-both chemical and mechanical-a 7 F.(2d) 13 thin and fluent slag must be obtained, and that a thin and fluent slag of a given chemical composition could be produced either at high temperature or at low temperature, and that when produced at high temperature it would promptly attack and destroy the basic lining, and when produced at low temperature it would not substantially attack or destroy the basic lining. This was his capital discovery. It was a phenomenon then unknown and still unexplained. It showed elearly that not the slag alone but a slag above a certain temperature was the thing which all along was the enemy of the basic lining. Yet this naked discovery did not solve the difficulty nor, standing by itself, did it amount to invention. Miami Copper Co. v. Minerals Separation, 244 F. 752, 755, 157 C. C. A. 200. Smith grasped the prineiple of his discovery and sought to develop it into invention by finding and disclosing a medium or means which would bring it into practical action. Morton v. New York Eye Infirmary, 5 Blatchf. 116, Fed. Cas. No. 9,865. And this he did by so proportioning the amount and composition of the silicious flux to the volume of the air blast admitted during the smelting blow as to produce a thin and fluent slag at the low temperature which he had discovered would not substantially attack the lining. In estimating the amount and composition of the flux he was without doubt dealing with variables, yet with variables which were susceptible of fairly accurate ascertainment. The flux, en masse, affected directly, though temporarily, the cooling of the molten bath. The composition of the flux also directly affected the temperature of the bath. What he did was to vary its composition so that it should contain less silica and correspondingly more inert heat-absorbing non-silicious material and thereby control the temperature of the bath and correspondingly lower the temperature of the slag. The customary way of controlling the temperature of a furnace is by increasing and decreasing the fuel and the air blast, but in operations of this kind the air blast, either for mechanical or economical reasons, is maintained steady and may be regarded as a fixed factor, impractical or unprofitable to vary for the purpose of regulating heat. So Smith left the air blast alone and sought to regulate the temperature of the converter bath, and thereby the character of the slag, through the media of amount and composition of the flux which is fed into the molten bath; that is, he sought to control the tem perature of the bath by a co-ordination of the elements of fixed air volume and variable amount and composition of the flux. He also found that when the silica content of the flux is decreased over much and the content of inert material is correspondingly increased, the bath tends to become cold or "freeze," and that this difficulty can be corrected by again proportioning the amount and composition of the flux by increasing the silica content and decreasing the inert material. And so throughout an operation the temperature of the bath and the quality of the slag can be kept below the danger point, whereby an unprotected basic lining-the second type of lining can be safely and economically used. This constitutes his invention. He disclosed it in the patent in suit. A typical claim reads as follows: "I. The method of bessemerizing copper matte in a converter having a non-corrodible (non-acid) lining with the employment of an acid-flux, which consists in forming a molten bath of matte in converter of such volume as to retain its fluidity as against losses by radiation during the blow, and so proportioning the amount and composition of the flux to the volume of air blast admitted that at the termination of the blow there will result a thin and fluent slag at a temperature insufficient to substantially attack the lining, substantially as described." The description in the specification covers the temperature and gives illustrative proportions of the amount and composition of the flux. The invention is addressed to ores of different characters and to available fluxes In view of the of variable silica content. inherently variable problems, the claims and specifications are, we think, definite enough to comply with the requirements of section 4888, R. S. (Comp. St. § 9432). Did this amount to invention? The respondent says it did not; and, moreover, if it did, the respondent says that Smith is not entitled to a patent because it had already been conceived and practiced by others. The anticipations relied upon are, inter alia, the patent granted Baggaley and Allen in 1904 (No. 766,654) and the Baggaley and Heywood operation at the plant of the Pittsburgh and Montana Copper Company at Butte, Montana, in 1905 and 1906. The Baggaley and Allen patent, now expired, covered a method of recovering values from ores by dissolving in molten baths. It was not addressed to the problem of saving basic linings in copper converters, nor, apparently, was that problem in the minds of the in ventors, although Baggaley had recognized is true that the silica content of the flux which was used at that plant was known. He dealt only with amounts and then only to the extent that the result would not be to freeze the bath and stiffen the slag. His procedure was such as a householder follows when he puts ashes-sometimes coal-on the firebed of an overheated domestic furnace, in quantity sufficient to cool it off yet not sufficient to put it out. If in this operation Heywood's workmen at any time hit upon the amount and composition of the flux required by the Smith process and attained its result, it was purely accidental and was without profit to the art and without value as an anticipation. Pittsburgh Iron & Steel Co. v. Seaman-Sleeth Co., 248 F. 705, 709, 160 C. C. A. 605. Certainly it taught the art nothing about the composition of flux in producing a slag which would not destroy a basic lining. the advantage of a basic converter and the importance of keeping its magnesite lining cool and tried to do it by the use of water jackets. True, the method of the Baggaley and Allen patent for recovering values included the molten bath of matte, blowing air into it, adding ore relatively high in silica, fluxing the iron of the bath and "replenishing the bath with material relatively low in silica and high in matte-forming compounds," the latter elements being at times, possibly, with in the proportions and the composition of the flux of the patent in suit. The effect of a flux "low in silica" was inevitably to lower the temperature of the bath and correspondingly to improve the quality of the slag. But if it ever protected the basic lining (which was by no means proved) it was accidental. The patentees did not know it; or, knowing it, they did not tell it to the art. It is only in the light of what Smith afterward discovered, and did, that the disclosures of the Baggaley and Allen patent have any application to Smith's problem. But the important thing is that, if, in the light of Smith, the Baggaley and Allen method can be used to protect a basic lining, Baggaley and Allen did not disclose how it can be done, that is, they did not suggest even remotely the idea of Smith so to proportion "the amount and composition of the flux to the volume of air that there would result a thin and fluent slag at a temperature insufficient to substantially attack the lining." [1] Coming to the Baggaley and Heywood operation at the Pittsmont Mine, these experienced engineers had the problem of saving the basic lining of a very large converter which they were trying to operate and with which they were having many troubles. They attempted to solve it by endeavoring to keep the bricks cool from the outside; that is, they attacked the problem externally instead of internally. When Heywood arrived at the mine, however, he conceived the idea of keeping the converter lining cool by keeping the bath cool and this he attempted by adding cool materials to the bath. In this he approached Smith's idea. He told the He told the men "to add cool ore or to turn it down or add cool slag or whatever cool material was on the floor"; he also told them to put into the converter "from time to time all the cold silica ore it would stand without freezing up or getting a slag so thick it could not be poured off." He said nothing about the chemical composition of the flux, although it Being of opinion that the process of the Smith patent was not anticipated, we come to the question whether the process amounts to invention. Smith did something. The thing he did was based on observation and discovery. He observed that the magnesite lining of a copper converter was at times attacked and destroyed by the slag and at other times it was not attacked by the slag. Therefore he knew that, for some reason then unknown, slag · would at one time attack the lining and at another time would not attack it. Smith moved from these observed facts to the discovery that the slag attacked the lining when at high temperature and that it did not attack it when at relatively low temperature. Having made this discovery he was the first to show the art the difference between a vicious slag and an innocent slag and he proceeded to embody this discovery in an invention which avoided one and obtained the other. And this he did by regulating the temperature of the slag in a way that has proved entirely practicable. Here was inventive discovery which involved the intelligent comprehension of relations not before recognized, although actually existing, followed by the conception of how they can be practically utilized. practically utilized. Eck v. Kutz (C. C.) 132 F. 758, 779. Smith's process, later disclosed in his patent, was not a temperature process. The problem was a temperature problem, and its solution was by a method to control slag temperature. Regarding the air blast as a fixed factor Smith gave the art variable factors of the amount and composition of the flux to be applied to the fixed |