Douglas daily dispatch., 1927-09-15
Defence WINS
SK|RM|SH IN
CARSON CASE.
Phelps Dodge Not Bourd
By Decree of Ninth Cir
cult Court, Held.
ATTACK PATENT
Defense Urges Nothing
New In Carson Reverber-
atOry Furnace.

TUCSON, Ariz., Sept IA, tP)--
''There is nothing new under the
sun"--about the Carson reverberatory
furnace patents: That was the con-
tention of the defense urged today in
the celebrated patent case, involv-
ing millions of dollars, now being
fought out in the United States
court.
Stubborn frontal attacks against
the validity Of the patents were re-
peatedly launched by H. A. Elliott
Of Bisbee, who is chief counsel for
the Phelps-Dodge corporation, one
Of the two defendants.
The defense attorney endeavored to
trace the "side charging" idea in
reverberating furnaces as far back
as the sedate sixties, and even
pointed to a similar custom that pre-
vailed back in Swansea, Wales. near
ly a century ago.
At the opening of the morning ses-
sion Judge William H. Sawtelle an
nounced that, after glancing at, the
authorities submitted by counsel, he
was inclined to agree with the de-
PENDANTS in their contention that
the decree of ninth circuit court of
appeals in the case of crle Carson
Investment company versus the
American Smelling and Refining
company, was only interlocutory and
therefore could not be made bar to
the defendant Phelps-Dodge corpora
ton in the present case, even assum-
ing that the plaintiff could establish
privity between the Phelps-Dodge
company and the American Smelling
and Refining company.
The court added that he, there
fore, would rule Professionally against
the Introductory of evidence on the
ground of privity but that he would
look further into the authorities and
would change his ruling should he
reach different conclusion at al
later date.
Charles S. Wheeler. of San Fran
cisco, chief counsel in charge of the 4
plaintiffs case, reserved the right
to make offer to prove privity be-
tween the Phelps-Dodge corporation
and the American Smelling and Re-
filming company
After analyzing the structure and
process of the Carson patents Elliott
announced that the defense would
endeavor to show the metallurgical
identity of those patents with a
number of patents by G. w. Sienens
and Frederick Siemens by the Unit
ed States, Great Britain and France.
1--WE will show that in cycle of
patents taken out by C. w. and
Frederick Siemens, who were actually
engaged in metallurgical processes
whenever melting furnace was re-
quired used the side charging type,
from 1866 to 1865 period of 10
years." the defense attorney said.
1--WE will prove that the Anaconda
company has operated large furnaces
after the Siemens type for many
months, and that October, 1925, the
Phelps-Dodge corporation has operat-
ed all reverebatory furnaces after
Siemens. Since February of 1927,
since the closing down of the blast
furnaces all Phelps Dodge copper
has been made after SiemenS.
"There has been produced under
the Siemens methods, as disclosed
by British patent number 2413 ap-
proXimately 1O0,000,000 pounds of
copper.
Turning his attention to the ques-
tion Of the validity of the Carson
patents, Elliott said:
"While there is a presumption of
validity of patents, which age re-
garded as quasi adjudication of in
yention or novelty. This presumption
does not hold when there can be
shown that there is fraud, inadver-
tence or mistake. In such case, the
burden shifts.
In applying for his patent, Carson
made Misrepresentation of metal
lurgical facts Elliott continued,
which tended to destroy the pre-
sumption of validity. The patent Of
flee, we propose to show relied on
these representations and issued the
patent TO Carson"