ELECTRICAL ACCUMULATOR CO. t1. NEW YORK '" H. B. CO.
& H. R. Co.
(Circuit Court, B. D. New York. April 9,1899.)
PATENTS :rOR INVENTIONS-INVENTION-ELECTRIO AOCUMULATORS.
Reissued letters patent No. 11,047, granted to the Electrical Accumulator Company, as assignee of Joseph Wilson Swan, December 17,1889, claiming a perforated plate for secondary batteriell, having the perforations extending through the plate, and the active material packed iii the perforations only, cover a patentable invention.
The fact that, before· the date of this invention, Prof. Eaton had packed active material in perforations extending through the plate, at the same time covering the. surfaces thereof, and that Mr. Brush had packed it into grooves in the plate without covering the surfaces, does not show a want of invention in the idell of .confining it entirely to perforations extending through the plate, since this apparently slight .change avoided the difficulties before encountered, and produced an electrode which has, to a great extent, superseded all others, and has become the electrode of commerce.
In Equity. Suit by the Electrical Accumulator Company against the New York & Harlem Railroad Company for infringement of a patent. Decree for complainant. PredtricH. Betts, for complainant. Thomaa W. Osborn, for defendant. COXE, District Judge. This is an action for infringment of reissued letters patent No. 11,047, granted to the Electrical Accumulator Company of New York, as assignee of Joseph Wilson Swan. on the 17th of December, 1889, for an improvement in secondary batteries. The invention of the reissue is intended to facilitate the construction of secondary battery plates by preparing them with perforations, cells or holes extending through the plate, in which holes the active material is packed. The original patent, No. 312.599, dated February 17, 1885, was' considered by this court in the case of Accumulator Co. v. Julien Co., 38 Fed. Rep. 117. The original was held invalid (pages 140-142) for the reason that it described and claimed a plate the outer surface of which might be covered by the active material. This construction, in view of the work done by Prof. Eaton, was held to be anticipated. The theory of the reissue is that the valuable feature contributed by Swan consists in confining the active material to the holes, without permitting it to extend beyond them to the surface of the plate. That portion of the original which refers to the coatitig of the outer surface of the plate has been omitted in the reissue. In other respects the description is unchanged. The claim is as follows:
.. A perforated or cellular plate for secondary batteries, having the perforathrough the plate and the active materiai or material tions or cells to become active packed in the said perforations or cells ·only, substantially
as described... This is the claim of the original, except that' the word "only" has been added. The patent cannot be criticised as a reissue. The v.50F.no.1-6
claim instead of being broadened is greatly restricted. The application ",itllin a. time after the of the facts which made a narrower claim necessary. The facts bring the case within the:proyisions of section' 4916 of the Revised Statutes. The field of invention is, concededly, a narrow one. The counsel .defendant correctly states that Swan's irriprovement consists for f"wh9tlM in the of, putting on the surface of a perforated plate ,fordl;econdary .batteries no active. material beyond the contents of the perforations; everything except this is conceded to be old." The date, de Swan's it;1Vention is Jan1,lary 18, .1882. Prior to that time but he covered both sides ,of'his 'plate as well.. Mr. 'Brush had rammed Of prcsfSed absorptive in the form of dry powder, into grooves or receptacles withoutco\"ering the surface oithe plate. No one had packed active material irlito' holes exttltlding through the plate, confining' it entirely to these holes. This combination was original with Swan. Did it involve w.vention? In approaching this subject it is well to remember, as1he court pas frequently had occasion to remark before, that we are dealing with 8 comparatively new and abstruse art, where the most important results are said to follow from changes, apparently, of the most unimportant character. Complete success .has not been attained, but if we may credit the statements of those who are entitled .. the the rapid strides in that directionquring the decade, are due to changes of form and mat&, rialw4jeh, in many other arts, would be insufficient to support invention. Tpe substitution of one mater:ial for another in a door-knob is the the mechanic, the substitution of one material for another in electrodes may solve a problem which will revalutioqi,ze the motive power; of the world. . In that there is sufficient invention disclosed to supportthe reissue the.' cpurt is influenced by tho following considerations: The Swan is to-dll.Y the elpctrode. of commerce. It has largely taken the "plapeof other ,structures and is almost llniversally used. having the active, material composed of small disconThe packed in holes extending through· the plate, is unquesnected . :The .electrolyte is thus permitted to reach and operate upon .of these small masses, instead of on one side where the actboth packlild in Gells CDr pockets. expansion and contractiql10f t.l.\'EI battery is in usecat;lses the activemain cells or .grooves. or spread upon the surlace of the plate, to crack, and portions of it tolle p\lshed out of .place and to fall away. These defects which produce "buckling," "short circuiting" and other reqledied by tb Swan construction. If sIXlall maases,inlhis plate becomes. injured or jaIls out it dOt'.B.. not affect injuriously the other pattsof the.electrode. As Sir William Thomson puts it: "The perforated plates have also the great advanthe. area of electric communioatioribetween the contage of· tinuous znotallic .conductor Qnd theporou8 or, spongy material' and so
ELECTRICAL ACCPMULATOR CO. V. NEW YORK & H. R. CO.
minimizing the electric resistance. The application of the oxide in the form of numerous mutually detached parts, separately held by the perforations, has also a great advanmge in almost annulling the warping or fracturing effects of the expansion and contraction produced by the changes of oxidation to whkh the active material is exposed in the charging and discharging of the battery." It is true that the step from the structures of Eaton and Brush to the electrode of Swan seems to be very short when looking back upon the work of these men. But standforward to the ideal elecing where Brush and Eaton did and trode which should avoid the then existiug difficulties and possess the excellencies of the present Swan structure, the steps undoubtedly seemed many and long. If it had occurred to Eaton to scrape off the active material from his plate leaving the holes fuU, he would have hit upon the invention. But it never did. If Brush had thought of punching out the bottom of his receptacles and had then rammed them full of active material without covering the external plate he would be entitled to the credit of having made the successful structure. But he did not think of it. The experiments at that time seemed to be proceeding along different lines, the object being to keep as much material as possible upon the surface of the plate. The conviction cannot be avoided that the idea which has made these plates a commercial success was firf:it given to the world in a practical embodiment by Mr. Swun. Confirmation of these viewf:i is found in two recent decisions of the supreme court. In Waahburn & Moen Manuj"g Co. v. Beat 'E.'m AU BarbedWire Co., 12 Sup. Ct. Rep. 443, the court says: "The diffl're lee between the Kelly fpnce and the Glidden fenre is not a radical one, but slight as it. may Sl'em to bp.. it was apparently this which malle the barbed-wire fenee a practi.cal and comnwrcialsuccess. TlJeinventiollll of lhlllt and Smith apppar to be scarcely more thall tentative, and never to have gone into general ur.e. Tile sllies of the Kl'lly patl'nt nl'ver seem to have exceeded 3,OUO tons per annum, while plaintiff's manllfactllre and sale of the Glidden devic" (suhstituling a sltarp harh for·a blunt one) rose rapidly from 50 tons ill to 44.000 tons in 1880, wlJile those of its licensees ill Hl87 reached the enormous amount of 170,000 tons. '" '" ... Vnd"r sllch circumstallCl'S courts have not bpen reluctant (0 sustain a patent to the mim who ha3 taken the final stl'P which has turned a failure into a SUCCl'SS. In the law of patents it is the last stl'P that wins. It llIay he strange that,considering the importllnt r..sults obtained by Kelly in his patent, it did noL occur to him to 8ub.'ltitue It coiled wire in place of thp diamond-shaped prong. b,-,t evi,lently it did not; and to the man to whom it dill ought not to bellenied the quality of an inventol·." . In MagotiJan v. Belting, etc., Co., 141 U. S. 332,12 Sop. Ct. Rep. 71, it was. held that the lact that the patented improvement"went at once into slich an extensive public nse, as almost to supersede all packings made under other methods, * '" '" was pregnant evidence of its novelty, and usefulness." These quotations seem peculiary applicable to thepresl'nt controversy. The principles which are there so clearly and pointedly reaffirmed require a decision sUl:ltllining the validity of the complaiuant's patent. As to defendant's infringement there can be .no
FllIDli:RAL REPORTER,' vol.
doubt. The question arising upon the expiration of the Danish patent hils not been argued. The casual examination which the <lourt, in the absence of explanation, has been able to give to this patent leads to the conclusion that it is hot for the same invention 8S the Swan reissue. ' There should be a decree for the complainant.
(Circuit Court, iE. D. Pennsylvania.
January 00, 1892.)
PA.TENTS FOB INVENTIONS-NOVELTY-PRIOR STATE OF THE ART.
,The firrrt two claims of letters patent 345,186, for apparatus for treating unbaked bretzelsicontaining as elements the generator, the perforated pipe leading from near, the bottom of the generatori a perforated ,spray-pipe, and a casing located over'the carrie!:, all of which eements, each operating in the same way and for'analogous pUrJloses, being shown in prior patents, and no new or better being obtained, do not cover patentable novelt,Y. of letters patent No. 845,186. which contained\he phrase,,"spraying and devices," /lnd the fact that the specification described the machine as having a spraying pipe and a perforated drum, by which inUt was sprinkled over the dough being treated. will cause to be included in this claim, as elements, both tbe druIIl and the spray-pipe, although an ambiguous correspondence between the, patent:office ana Inventor, and t4e fact that the solution llischarged by the spray-pipe was alkaline, be urged in favor of construetio.n of claim, incl1,1dingQnly the spraying device; and defendant, not employing the saltfnj;f drum. does not infrin'1e.
2. SAME-ExTENT OF CLAIM-!NI1RINGEMENT. The natural construction 0If the tbird claim
Bill in: equHy by David F. Stauffer against Hartison Spangler, H Samuel Spangler, George H. Smith, and W. H. Soader to restrain infringement of letters patent 345, 186, issued to complainant July 6,1886, for apparatus for treating unbaked bretzels. Bill dismissed, claims 1 and 2 declared invalid, claim 3 restricted and declared not infringed. JOB. a. Fraley, for complainant. Strawbridge & Taylqr, for respondents.
AQHESON, Circuit Judge. The bill charges the defendants with the infringement of letters patent No. 345,186. granted July 6, 1886, to the plaintiff, David F. Stauffer, Jor improvements in apparatus for treating unbakedbretzels and crackers and other similar articles formed of dough for baking,'" so as to mote conveniently give tf'Jem the glazed and salted surfaces characteristic of such articles when baked." 'fhe specification states that tht:lretofore the dough, when formed into proper shape, "has been dipped. ih a suitable solution, and the salt afterwards sprinkleq over the same byhand, which is a slow arid tediousoperation, involving the loss, in addition, of considerable material, which is scattered and ,The declared object of the invention is." to provide an apparatus by which these operations may be conveniently and thorot;lgh1y effected with comparatively little loss of material, and in a much more thorough and e:x;I , - . ) .·
Re\>ortedby Mark Wilks,Collet, Esq., of the Philadelpbiabar.