ferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts." of the language of section 63, if it did not render it, in part, meaningless. It is argued for petitioner that, whatever the general rule may be, under the Washington statute such a claim is a provable debt. Section 1, subsection 11, of the act, pro- Section 431-1, Rem. Comp. Stat. of Wash., vides: provides: "Debt' shall include any debt, demand, or claim provable in bankruptcy." "The clerk on the return of a verdict shall forthwith enter the same in the execution Section 63 of the act, subdivisions (a) and docket, specifying the amount thereof, and (b), provide: (a) "Debts of the bankrupt may be proved and allowed against his estate which are: (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest; • (5) founded upon provable debts reduced to judgments after the filing • of the bankrupt's application for a discharge, less costs incurred and interest accrued after the filing of the petition and up to the time of the entry of such judgments." • (Italics those of the court, and not the statute.) (b) "Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against the estate." While judgment upon a pure tort is a "provable debt" (Moore v. Douglas [C. C. A.] 230 F. 399), a claim upon a verdict for such a tort is not (In re Ostrom et al. [D. C.] 185 F. 988). To so hold would be a straining the names of the parties to the action and the party or parties against whom the verdict is rendered; such entry shall be indexed in the record index and shall conform as near as may be to entries of judgments required to be made in such execution docket. On the entry of such verdict as herein provided, the same shall be notice to all the world of the rendition thereof, and any person subsequently acquiring title to or a lien upon the real property of the party or parties against whom the verdict is returned shall be deemed to have acquired such title or lien with notice, and such title or lien shall be subject and inferior to any judgment afterwards entered on the verdict." [2] This argument cannot prevail. This section provides for the giving of notice of what thereafter may by judgment become a "debt" and lien upon real estate. As pointed out by the court in Moore v. Douglas, supra, the bankruptcy court will not give in this respect a judgment (and, of course, a verdict) the same force and effect that is given it in the state court, because section 63 of the Bankruptcy Act has made the rule by which the bankruptcy court must be governed. Adjudication denied. CARSON INV. CO. v. ANACONDA COPPER MINING CO. CARSON INV. CO. et al. v. ANACONDA (District Court, D. Montana. 1927.) No. 229. 815 In Equity. Suit by the Carson Investment Company and John Henry Miller, January 24, trustee, against the Anaconda Copper Mining Company. Decree for defendant. See, also, 14 F. (2d) 559. 1. Patents66(1)—Prior patent is "anticipation" of one which merely corrects defects therein, which, and the remedy, were obvious to one skilled in the art. A patent for an invention, which fails to work efficiently because of some minor defect, is none the less an anticipation of a later patent for a similar device, in which the defect is corrected, where both the defect and means of correction were obvious to any one skilled in the art. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Anticipation.] 2. Patents 17(2)—Mere improvement which would occur to any skilled mechanic using process or machine is not invention. Mere adjustments which improve are not inventions, if only what would naturally occur to any skilled mechanic in the ordinary use of process or machine. 3. Patents 54-Defective machine may anticipate later process patent. Even a defective machine, which with the adjustments an operator would sense and make, may anticipate a later process patent. 4. Patents 328-Carson, 1,149,495 and 1, Kremer, Sanders & Kremer, of Butte, Mont., and John H. Miller, Charles S. Wheeler, Jr., and A. W. Boyken, all of San Francisco, Cal., for plaintiffs. L. O. Evans, D. Gay Stivers, and John A. Groeneveld, all of Butte, Mont., D. Anthony Usina, of New York City, Jones. Addington, Ames & Seibold, W. Clyde Jones, Arthur A. Olson, Thorley von Holst, A. F. Mecklenburger, and Arthur B. Seibold, all of Chicago, Ill., for defendant. usual infringement suit, involving the patBOURQUIN, District Judge. This is the ents and claims upheld in Carson v. Company (C. C. A.) 4 F. (2d) 463. Defendant's motion to dismiss for defect of parties, made at beginning of trial (a dilatory and vile practice), not heard then, is denied now. Although Carson, one cestui of several, brought the suit ostensibly as sole owner, and which questionable tactics are poorly explained, and although contrary to former practice in 302,307, for metallurgical furnaces, held in- equity, a cestui is not a necessary party, it valid for anticipation. The Carson patents, No. 1,149,495, for a metallurgical furnace, and No. 1,302,307 for construction of roof of open hearth and reverberatory furnaces, granted on a divisional application, the essential feature of both being the feeding of the smelting ore into the furnace through openings in the roof near the side walls, from which it sinks to the floor by gravity, forming a sloping embankment against the walls, which protects them from the action of the bath, held anticipated by the Siemens patents, beginning with British patent 2,413 of 1866, in all of which ore protection of the walls by similar method was a feature, and also by prior public use. If conceded validity, held infringed. 5. Patents 91(3)-"Rule of suspicion," In considering ex parte tests by party, not approved. is believed the interests of all cestuis warrant amendment to substitute owner and trustee. The The trial required, or rather consumed, 10 days, amassing some 1,600 pages of evidence and "near" evidence, 200 exhibits, and 300 pages of depositions, and 475 pages of briefs leisurely prepared during 3 months subsequent to trial, are contributed. whole is a conglomeration wherein the material and necessary is as Gratiano's reasons, is not unusual, and may be imputed to (1) so far as environment is concerned. All this a large array of specialists, assistants, and their assistants, investigators, prompters, experts, etc., for strategical purposes in huddle on slightest provocation, to some extent inspired to display of abstruse learning and superior skill, if only to impress and awe others from forays in the specialist's fertile field; and (2) to the new equity rules. For, whatever else may be said of the latter, they require weeks to try a suit which formerly was presented in days, they have congested calendars, delayed litigation, and increased and intensified the labors of courts. Perhaps some time relief will be found in judges able as juries to forthwith decide, rather tion of the prior art are entitled to little, if than after recollection waues in awaiting deany, presumption of validity. The "rule of suspicion," applied to ex parte lists and experiments made by one party to an infringement suit, is difficult to justify, as, while even severe scrutiny of evidence is one and a good thing, suspicion in the beginning is another and a bad thing, which prejudges the case, unmindful of the presumptions of truthfulness and common honesty, which should not be ignored by triers of facts. 6. Patents 112(3)-Patents issued without due consideration of prior art are entitled to little presumption of validity. Patents which issue without due considera ferred brief's. Herein the issues are simple and few, and naught but the earlier case justifies extended consideration. Its record in large part in evidence, plaintiffs contend that in many particulars the appellate tribunal's decision therein is controlling here. In equity, it is the practice to thus introduce the record of the earlier patent suit to which a present party is a stranger, and for no very good reason. That assigned is comity, conformity, and stability of judicial decisions. There is, however, a more vital principle, which in balance of convenience and justice ought to be maintained, viz. no party shall be prejudiced by proceedings to which he is a stranger. This principle controls in jury trials, the earlier record denied admission, and this distinction without difference exposes the fallacy of the practice; for what is competent be records. See Concrete, etc., Co. v. Gomery, 269 U. S. 177, 46 S. Ct. 42, 70 L. Ed. 222; Tilghman v. Proctor, 102 U. S. 708, 26 L. Ed. 279. Adverting to the evidence, Carson applied for the earlier of the patents on January 15, 1907, and it issued on August 10, 1915. It is for "improvements in metallurgical furnaces." The specifications describe a process in instrumentalities, and the single claim is: "In a metallurgical furnace, having receptacles arranged above the roof thereof, passages from said receptacles leading to said furnaces arranged in such a manner that the material in said receptacles passes out into said furnace by gravity and form the lining thereof." So far as material, the following drawing from the patent discloses the invention; fore the one trier of facts is competent before the other, and neither ought to be influenced by incompetent evidence. At any rate the practice is nullified by the strategical discovery that the earlier record is "different." And it always is different-is different in the instant case. For always are differences in the imponderables at least, the imponderables so vital to credit and weight attaching to witnesses before the court; and new circumstances often require different construction of documents. Moreover, the integrity of trials demands that the judgment of one trier of facts be not influenced by that of some other in a different case. The appellate tribunal's decision in said record is accorded due respect, but here, as elsewhere, it controls only to the extent it determines the law. In any event, different decrees may well be justified by different In the meantime, conceiving he was not receiving his dues, Carson filed a divisional application on June 26, 1915, for "an improvement in the construction of roofs of open hearth and reverberatory furnaces," and patent issued on April 29, 1919. It contains three claims, the two involved being: "2. The method of protecting the walls of an open hearth or reverberatory furnace which consists in feeding the ores or fettling materials into the furnace chamber near the upper part thereof, and in causing the same to form a sloping embankment resting upon the floor of the furnace chamber and along the walls within the chamber between the bath and walls. "3. In an open hearth or reverberatory furnace, a floor, walls extending upwardly from the floor, and feeding ports leading in 17 F.(2d) 815 to the upper part of the furnace chamber and being so located that the ores or fettling materials entering therethrough may have unrestricted vertical movement downwardly to the said floor near the walls and may form sloping embankments against the walls to protect the latter from the heat and corrosive action of the metal bath." ent: layer will accumulate upon it and a grate or hearth of an angle of 30 degrees. British 2,413 of 1866, for improvements in processes and furnaces, amongst the specifications being that: "My invention has for its object the production of iron or steel directly from the ore and in a continuous manner, analogous in The following drawing is from the pat- this respect to the continuous action of the blast furnace, and consists in exposing a Fig.1. A E B E B By later disclaimers, "or fettling materials" was excluded from the claims, and the meaning of "ores" and "charge" was modified accordingly. Ignoring all crudities, ambiguities, and superfluities in Carson's applications, the invention claimed, patented, and involved is a process to protect the sides or walls of smelting furnaces from heat and bath, and that, by sloping embankments of ores upon the hearth and against the sides or walls, formed by gravity consequent upon feeding the ores into the furnace at or near the tops of the walls. It is of defendant's contentions that therein Carson had been anticipated by disclosures in many patents to Siemens and others, and it is the court's judgment that the defense is made out. The Siemens patents follow: British 167 of 1861, for improvements in smelting furnaces, is material, for that in its "sloping sides" of the hearth proper is the forerunner of the "inclined walls" of Siemens' later patents, for that it defines "plenum of pressure" (a term undefined in the next patent) as full atmospheric pressure, and for that he states that solids (fuel) to be treated will by gravity descend over an "inclined plane at an angle of 45 degrees or thereabouts," and in a deep 17 F. (2d)-52 mass of ore, which may or may not be mixed with reducing agents or fluxes, to the surface action of intense heat produced by the combusion of highly-heated air and gaseous fuel, and in introducing at the same time a current or currents of combustible gases, or of petroleum oil or other volatile hydrocarbons, alone or in combination with the combustible gases in amongst the mass of ore from below the same, so as to percolate through the mass, effecting its reduction, and at the same time enveloping its surface where exposed to the flame in a nonoxidizing or reducing atmosphere, yielding a certain amount of carbon tending to facilitate its fusion; the mass of ore being arranged in such a manner, by preference upon inclined surfaces, that the fused metal produced at the surface readily passes away therefrom, so as to leave such surface always exposed to the action of the heat. The fused metal and slag accumulating at the foot of the inclined surfaces of the ore are from time to time removed, while a mass of ore is maiņtained upon the inclined surfaces by its own gravitation, fresh ore being supplied from hoppers at the top of the incline in regulated quantities. "One of the principal advantages of this furnace is that the sides are protected against fusion by the ore or other substance to be melted, particularly at the surface line of the liquid cinders, where brickwork is rapidly destroyed." This patent describes in detail a complete principal process of iron ore smelting and steel manufacture, included within which is a minor or incidental process of ore protection of furnace walls. Other of the specifications is that a "plenum of pressure" be maintained, which, when reducing agents are mixed with oxide ores, will "cause a certain amount of gas to percolate upwards through the mass of ore" on the inclined walls and in the hoppers. Amongst other claims is: "Fourth, arranging the chamber in which the simultaneous reduction and fusion of the steel or iron is effected in such a manner that the ore descends through hoppers or shafts upon the sides of the chamber, so as to protect the walls or inclined surfaces thereof from the heat of the furnace and the corrosive action of the slags or cinders of the metallic bath by the interposition of the ore itself, substantially as described with reference to the accompanying drawings." Of various drawings, two of furnaces are below; Fig. 8 a modification of Fig. 1: |