(dissenting). That the Anaconda test furnace is practicable the evidence establishes beyond a reasonable doubt, and upon its structure both the Siemens and Carson patents are, in my judgment, easily read. With all deference, too much significance, I think, is attached to a single expression in the Siemens patent, suggesting a wall inclination such as will maintain the ore thereon by its own gravitation, or, as seems to be the view of the majority, the angle of repose. The angle of repose being indefinite and variable, depending upon the coarseness and angularity- of the material and the manner in which it is fed to the heap, it is difficult to believe the reference to it was intended as a fixed speeification for wall posture. But, of more importance, with the interpretation put upon it by the majority the statement is opposed, not only to the Siemens drawings, which exhibit walls conceded to be too steep for any possible angle of repose, but to the express language declaring that the ore from the hoppers “sinks down into the bed of the furnace, forming a sloping heap on either side, * * * the ore acted upon by the flame is fused, and the liquid ore collects in. the basin formed in the middle of the furnace between the two side heaps of ore.”
As I understand, the parties are in accord upon the proposition that the invention in controversy consists essentially of the conception of protecting the side walls of the furnace from erosion by a lining of the smelting ore itself, instead of one of foreign or fettling material, and the attendant conception of the means for accomplishing this end by so introducing the ore through ports along the top of the wall that by gravity it moves downwardly, forming a heap resting upon the floor of the furnace and against the side wall, the interior surface at all times corresponding measurably to the angle of repose. Carson’s drawings disclose perpendicular walls, but he declines to be limited to that form of structure, and, I think, correctly, for perpendicularity is not of the essence of his claimed invention. But for like reasons no specific inclination is of the essence of Siemens’ patent. The essential elements of both are the same, and when, as is true of both, the object, and the general scheme by which it is to be accomplished, are clearly described, all the rest is a mere matter of mechanical skill in practice. So I fully concur in the opinion of the lower court, where it is said:
“But grant, for the sake of argument, that Siemens’ walls are too flat to accomplish what he so fully and clearly described in the patent last aforesaid and elsewhere: None the less they serve for anticipation. Why? Because any one skilled in the art, any layman reading Siemens, advised of his object, observing the failure of his process-to function over such walls, would instantly appreciate the mischief and the remedy, viz. too flat walls to be raised more nearly vertical. He would indubitably comprehend that, if the ores would not descend to the hearth over Siemens’ walls, they would over steeper walls. That is all Carson did, and that is merely mechanical, and not invention —is the mere ‘shadow of a shade of an idea’ frowned upon in Atlantic Works v. Brady, 107 U. S. 200, 2 S. Ct. 225, 27 L. Ed. 438. *664At best what he did is but 'as a skilled mechanic, witnessing the performance of a machine inadequate by reason of some defect, by the application of his common knowledge and experience, perceives the reason of failure, and supplies what is obviously wanting. It is but the display of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the faculty of manipulation which results from its habitual and intelligent practice, and is in no sense the creative work of the inventive faculty which it is the purpose of the Constitution- and the patent laws to encourage and reward.’ Hollister v. Benedict & B. Mfg. Co., 113 U. S. 73, 5 S. Ct. 717, 28 L. Ed. 901, cited in Concrete, etc., Co. v. Gomery, 269 U. S. 177, 46 S. Ct. 42, 70 L. Ed. 222.”
Moreover, as I understand the operation, the course of the smelting ore in its descent into the bath and to the floor is substantially the same, whether the furnace walls be perpendicular or inclined; such course approximating the plane of the angle of repose. In the case of a perpendicular wall, the ore in the heap back of the plane of repose remains in repose, so that the real wall, down the surface of which the smelting ore reaches the floor, approximates the angle of repose. That this is true would seem to be manifest, and its concession is necessarily implied in Carson’s contention that his patent covers an inclined, as well as perpendicular, wall. If the maintenance of a triangular section of the heap, bounded by a perpendicular side wall, the floor, and the plane of the angle of repose, is essential to his conception, he could not claim infringement by a furnace of the Anaconda structure, having walls inclined to 60 degrees.