ELECTRICAL ACCUMULATOR CO. II. JULIEN ELECTRIC CO.
117
ELECTRICAl, ACCUMULATOR
CO.
tl. JULIEN ELECTRIC
CO. et al.
(Circuu Oourt, 8. D. Net1J York. March 18, 1889.)
1.
PATENTS FOR INVENTIONS BATTERIES.
CONS>J:RUCTION OF CLAIM -
FAURE SECONDARY
The specification in letters patent No. 252,002, issued January 8,1882, to C. A. Faure. describes the batteries invented by Gaston Plante, in which the plates have comparatively limited capacity, and require a long and expensive operation for their formation, and states the patentee's object to be to prevent such waste of time and money. and to construct a more powerful battery. Claim 1 is "as an improvement in secondary batteries, an electrode consisting;" etc. Held, that a secondary battery, as distinguished from a primary one. is an element of the combination.
S.
, There being weIl·known primary batteries, and weIl-known secondary batteries. though there are others not definitely classifiable, the term "secondary battery, " as used in the patent will not be construed as including Ii primary battery which has been exhausted and partially restored by being charged from an independent generator. B. SAME. " ' " ", ' ,,'" Claim 1 being for "an electrode," etc., and the words "a pair of electrodes" being used in another claim. and it appearing from a foreign patent and the file-wrapperand the domestic patent that the patentee's attl:Jntion was 4rawn to the distinction between Oneand two electrodes, the daim cannot be limited to the use of two electrodes. but a battery ODe Faure electrode, though the other is dissimilar, is within the claim. if the two operatetore-. ceive and-discharge electricity as stated in the specification. " " SAME.
SAME.
Claim 1 is for "an electrode consisting of a support coated:onone or more faces with an active layer of absorptive substance such as metalor metallic compound applied thereto in the described condition so as to be,orinstantly become spongy. and thus capable of receiving and dischargingelectricit1, as stated; in contradistinction to a me taili c plate itself rendered spongy by;the disintegrating action of electricity, substantially," etc. !tis stated til lit the oxides or salts of lead not soluble in the electrolyte is deemed :most advantageous for covering the supports, but that the inventi(jn includes geI).· erally substances capable Of itbsorbing and storing electricity; for example, manganese, or any salt, the oxide of whose base is insoluble; that the active material may be applied, in various ways as in the form of paint, paste, or cement, in the form of a deposit by galvanic action or chemical precipitation or otherwise. In charging. the electricity produces a reduced mass of porous lead ()n one electrode and a mass of peroxide of lead on theother,andiudischarging the reduced lead becomes oxidized. and the peroxidized lead is: reduced. Held, that the claim includes a coating soluble in the'electrolyte 'and one which is applied after immersion by galvanic deposit or chemical precipi· tation from a s(}lution in the liquid. ..,., The patentee cannot claim the invention earlier than October 20, 1880; which was the date of his French patent. he being then a citizen of France: " , , ' ,
$. SAME":"DATE OF INVENTION.
.e.
SAME-ANTICIPATION.
.
The ElectriCian' of 1'868 containt:d an article entitled "SeC(jndary13atteries." but there was no evidence that a successful secondary battery having the characteristics therein mentioned was ever made, though similar structure,s.: were. proved inoperative; and in such battery a reduced mass of porous lead on olle electrode and amass of peroxide of lead on theotl),er were not produced. A person skilled in the art, afterreading the article, ,would be unable to produce a Faure battery in any of its practica!forms. ,Held nO,antielp a t i o n . ' . '
... A witness testified to an article 25 years before, and· to' experiments and results by him which would amount to. anticipation., ,The article .was not
,.
"
118
FEDERAL REPORTER,
vol. 38;
produce:d. and the witness was not corroborated, and some of his statements were SPowllto be inaccurate. Sinc;:e then he had taken out more than 30 patents, and had written 0,000 articles on scientific subjects. none of which referred to the alleged invention. Held insufficient to rebut the presumption of novelty arising from the grant of the patent. . 8. An electrical engineer testified that in 1879 he suspended In dilute sulphuric acid a lead plate having a coating of lead powder secured to it by means of blotting paper, a strip of wood, and a string, and opposite this he suspended a plate of amalgamated zinc. He also made another cell by suspending two such coated lead plates in the electrolyte. He connected the two cells and charged them for several hours on each of several days. In one instance he made a coating of red oxide of lead and in another of litharge. His experiments were successful, and he made full memoranda of them. which were soon after destroyed by fire, and which he afterwards undertook to reproduce. though he did not. describe particularly the batteries. In July, 1880. he laid in dilute sulphuric acid, in contact with metallic zinc, lead plates, some of which contained in a groove yellow oxide, and others sulphate of lead, whereby the oxide and sulphate were reduced to metallic lead, and the zinc was dissolved. He then suspended in one c,:ell two plates which had contained sulphate, and in another two which had contained oxide, and charged them. These were afterwards lost. In September, 1880, he treated similarly plates which were filled with litharge and sulphate. On the issue of the Faure patent he demanded interferences, and was successful. He was corroborated in / important particulars by three witnesses. who saw experiments. Held an anticipation, except as to the method of applying the layer to the electrode in the form of paint. paste, or cement. SAME-DISCLAIMER. SAME. .
8.
As the real Invention of the patentee was the application before immersion in the electrolyte of the active layer. in the form of paste. paint. or cement, insoluble in .the electrolyte, so as Instantly to become spongy. and was generally so understood, and as such invention was one of great merit. and as it is fully described in the specification, and the claim as to it would not be mutilated by a disclaimer as to the residue. the patent should be allowed to stand on filing such disclaimer, as by Rev. St. 4917. 4922, and complainant in a suit in which infringement is established may thereupon have a decree, but without costs.
10.
SAME-SERIES OF CELLS-CONSTRUCTION OF CLAIM'.
Claim 4 is: "In a secondary battery. a series of cells comprising each a pair of electrodes with an active. spongy layer thereon, combined with non·porous partitions between adjacent cells. substantially, etc, The specification states that it is advantageous to apply a non·porous partition to the plates so as to cut off all communication between the cells. and that this combination of non·porous diaphragms with the electrodes is a portion of the invention; that the arrangement permits the employment of thin sheets of lead. while se· curing sufficient stiffness. and affording means of securing the parts without leakage between adjacent cells on each side of the leaden plate; that when the supporting plates are to be placed so as to permit distortion by mechanical strain stiffness may be imparted by applying them on wood. or hard. rubber non'porons boards. so as to prevent the passage of lIqnid between the cells. Held. that there would be no invention in a mere aggregation of cells. but that the c1aii11 would be valid by limiting it to the combination of the electrodes with non-poroiJs partitions as described.
I,
11.
SAME-PLATES FOR
The claim of letters patent No. 312.599, iSSiJed February 17. 1885, to J. W. Swan. is for a perforated or cellular plate forsecl)ndary batteries, having the perforations or cells extending through the plate In which the active material is packed. SiJch plates hold the 9.clive nlaterialsecurely.extend the area of electric communication between the continuous metallic conductor and the porous material, and by their use the warping or fracturing effects of the' changes of oxidation are almost annulled.. that the constructio"n of such plates involved patentable invention. ' .. ; ' d
BATTERIES.
Jj:LECTRICALACCUMULATOR CO.
v.
JULIEN ELECTRIC CO.
119
12.
SAME-ExPANSION OF ApPLICATION.
The original specification stated that the plate shown in the figures was constructed with cells or cavities for the reception and retention of spongy lead. and might be closed on one side, as shown in one of the figures. There was no evidence of alterations in the drawings, and the file-wrapper showed that the original drawings were in the office when the claim for a perforated plate was presented, which was .after the original specification was filed. Held, that the original specification described a perforated plate, and that the patent in covering it did not unlawfully expand the original application. SAME-DATE OF PATENT. '
18. . 14.
A statement in the specification that, the patentee has obtained a prior foreign patent is not proof thereof, and does not carry the invention back to the date of such patent. SAME-ANTICIPATION.
The application having been filed January 18, 1882, the English patent to John S. Sellon, though dated September 10, 1881, was not an anticipation, it not having been sealed until March 10, 1882.
tli.SAME.
16.
A witness testified that prior to 1881, he made perforated lead plates upon both sides of which he precipitated previously prepared lead sponge, covering the surfaces and filling the perforations. He also placed lead sponge on one or both of two perforated plates, and then united them, the sponge being retained between them and filling the perforations, thus making one electrode. He also placed the paste on cloth or asbestos, and inclosed it between perforated plates. Woven lead wire was coated with a paste by him also. Batteries thlls were successful. Corroborating testimony was given by two others llolld there was no conflicting .evidence. Held an an· ticipation, and. ifno,t complete, that there was nothing remaining of which to predicate patentable novelty. ' In letters patent No. 318,828, issued May 26,1885, to J. W. Swan, the claim is: a battery plate or electrode composed of a conducting support combined with active material, the support in the form of a plate with angular or equivalel).tholes. cells, or perforations extendipg through the same, and separated from one another by webs, walls, or partitions of uniform cross-section. the active material berng placed in said holes." etc. Held, that it covered Bo patentable invention, not included in the first Swan patent.
SAME-PATENTABILI'l'Y.
In Equity. , Bill by the Electrical. Accumulator Company against the Julien Electric Company and William Bracken. Frederic H. Betts, for complainant. Thmnas W. 08born and Horace M. Ruggles, for defendants. COXE, J. This is an action for the infringement of four letters patent, owned by the complainant, for improvements in secondary electrical batteries. One of these, No. 266,262, granted to Shaw and Rogers, Oc.tober 17, 1882, has been withdrawn from the consideration of the court. The three in controversy are No. 252,002, granted January 3, 1882, to Camille Alphonse Faure; and Nos. 312,599 and 318,828, granted, respectively, February 17, and May 26, 1885, to Joseph Wilson Swan. '.Fhe invention of Faure relates to that class of batteries which give no electricity of themselves, and are active only when rendered so by sending a curreIit through them from an independent, source of electric energy; , batteries which, being included for It time in a.circuit generated from an ordinary galvanic battery, for example, become charged.so that. they subsequently give out electricity on the completiQn of a proper circuit.
120
vol. 38.
This process may be repeated an indefinite number of times. When the battery runs down it can be charged again. The inventor describes the secondary batteries of Gaston Plante, in which, by a long and expensive operation involving weeks, and even months, the plates are formed, but with a comparatively limited capacity. To prevent this waste of time and money, and to construct a more powerful battery, was Faure's object. His electrodes are made, not by the formation of a porous layer by disintegration in the body of the metallic plates, but by adding to suitable supports a layer of active material, of the desired depth, in the form of a paint or paste, or otherwise. which is, or at once becomes, spongy or porous. This active layer may be rendered more porous by mixing with the material composing it some inert material, such as crushed coke. "Iu charging, the electricity acts to produce a reduced mass of porous lead on one electrode aud a mass of peroxide of lead on the other. When the battery is discharged, the reduced lead becomes oxidized and the peroxidized lead is reduced, until the equilibrium is restored." The c1l!-ims in controversy are the first and the fourth. They are: "(I) As an improvement in secondary batteries, an electrode consisting of a support coated on one or more faces with an active layer of absorptive substance, such as metal or metallic compound applied thereto in the described ,condition, so as to be or instantly become spongy, and thus capable of receiving and discharging electricity, as stated, in contradistinction to a metallicplate itself rendered spongy by the disintegrating action of electricity, substantially as and for the purpose set forth." "(4) In a secondary battery, a series of cells, comprising each a pair of' electrodes with an active spongy layer thereon, combined with non-porous. partitions between adjacent cells, substantially as and for the purpose set. forth. " The general defense is want of novelty,which is subdivided as follows: Fir8t, prior use; 8eeond, anticipation in prior patents and publications;, third, PllbUc use more than twq years prior to the application; fourth, lack of invention; fifth, the are to(l broad, and include well-known prior inventions; Bixth, the patent is ambiguous, and misleading, and does not point op.t the inventions; 8erenth, the application wag, unlawfully expanded by amendments. Non-infringement of the fourth claim, if construed to mean that the must be applied to the, partitions, is also alleged. That the language of the patent is ambiguous, and especially so as it relates to the first claim, seems to be conceded on all hands. If otherproof were needed that it is not written in the most perspicuous language,. it will be found in the fact that the record contains nearly 2,000 pages, the greater part of which, as well as of the briefs, which aggregate 41 L pages, is devoted to an effort to ascertain its meaning,-an effort which has hardly crystalized into a demonstration upon anyone of the points in oontroversy. In construing the first claim it should be remembered that it is limited to an improvement upon the well-known batteries oiG-aston Plante, whowas the creator of practical secondary batteries. The art began with him· .A secondary battery, as distinguished from a primary battery, is, there-
ELECTRICAL ACCUMULATOR CO. 11. JULIEN ELECTRIC CO.
121
fore, one element of the combination. Telephone Cases, 126 U. S. 572, 8 Sup. Ct. Rep. 778. A secondary or storage battery is a battery which has no original power of devoloping a current of electricity, and is active only when rendered so by sending a current, elsewhere generated, through it. The current produced by the secondary battery, because. of the change in the snrface of the plates, will run in an opposite direction to that of the current produclld by the independent source of electric ergy by which it is charged. A primary battery is a chemical generator. of electricity which is active by virtue of the materials of which it is made. The material of at least one electrode passes into solution during the use of the battery. A primary battery is active; a secondary battery, in its inception, is passive. The two differ as a spring differs from a reservoir. In the former the electrodes are dissimilar, and the battery is rendered operative by reason of the attack upon and dissolution ofthe positive electrode in the battery fluid. The other electrode collects the electric energy from the liquid. In the latter the electrodes are initially similar, or substantially M. They are not acted upon by the liquid, and either may be made the positive or negative electrode by its communication with the charging source of electricity. "A primary battery can only give a certain amount of current in a definite period of time, while in the secondary battery the amount of current which may be obtained from it depends entirely upon the resistance of the conducting wires discharging it." The current may be much stronger than that obtained from the charging battery. A primary battery which has become exhausted may be restored to partial effectiveness by sending a current 'through it, always in a reverse direction, from a.n independent source of electricity, in the same manner, substantially, as a secondary battery is charged. Thus the normal condition of the cell may be approximately, but not wholly, restored, for the battery constantly loses capacity until it ultimately becomes useless. Upon this branch of the controversy, the question regarding which there has been the widest divergence of opinion is whether or not a primary battery, thus treated, becomes a secondary battery. It is insisted on the part of the complainant that it is only a partially regenerated primary battery; that it lacks the essential acteristics of a secondary battery. In a secondary battery there are two elements initially alike, or substantially so, in electric properties, and scale; both are. in the first instance, not separated in the chemically inactive, and practically insoluble in the electrolytic liquid; either may be connected with the positive pole of the charging battery. and at any time the current may be reversed; the process of charging and discharging may be repeated indefinitely without loss of force, or undergoing physical change. None of these distinguishing features are found in the restored primary battery. On the other hand, the defendants contend that a secondary battery may be one which at any stage of its existence has come to a state of electrir.al equilibrium so that it can give no electricity of itself; in other words, that a secondary battery may be a primary battery which has become exhausted, and charged from an independent· generator; that the distinction between· the two lies not in
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