Electrical Accumulator Co. v. Julien Electric Co.

• Decision Date: 18 March 1889
• Citation: 38 F. 117
• Parties: ELECTRICAL ACCUMULATOR CO. v. JULIEN ELECTRIC CO. et al.
• Court: U.S. District Court — Southern District of New York

38 F. 117

ELECTRICAL ACCUMULATOR CO. v. JULIEN ELECTRIC CO. et al.

United States Circuit Court, S.D. New York.

March 18, 1889

[Copyrighted Material Omitted]

Frederic H. Betts, for complainant.

Thomas W. Osborn 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 One of these, No. 266,262, granted to Shaw and Rogers, October 17, 1882, has been withdrawn from the consideration of the court.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. The 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 current through them from an independent source of electric energy; batteries which, being included for a time in a circuit generated from an ordinary galvanic battery, for example, become charged so that they subsequently give out electricity on the completion of a proper circuit.

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. 'In charging, the electricity acts to produce a reduced mass of porous lead on one electrode and 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 claims in controversy are the first and the fourth. They are:

'(1) 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 metallic plate 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: First, prior use; second, anticipation in prior patents and publications; third, public use more than two years prior to the application; fourth, lack of invention; fifth, the claims are too broad, and include well-known prior inventions; sixth, the patent is ambiguous, and misleading, and does not point out the inventions; seventh, the original application was unlawfully expanded by amendments. Non-infringement of the fourth claim, if construed to mean that the electrodes 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 other proof 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 411 pages, is devoted to an effort to ascertain its meaning,-- an effort which has hardly crystalized into a demonstration upon any one of the points in controversy.

In construing the first claim it should be remembered that it is limited to an improvement upon the well-known batteries of Gaston Plante, who was the creator of practical secondary batteries. The art began with him. A secondary battery, as distinguished from a primary battery, is, therefore, one element of the combination. Telephone Cases, 126 U.S. 572, 8 S.Ct. 778. A secondary or storage battery is a battery which has no original power of developing 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 surface of the plates, will run in an opposite direction to that of the current produced by the independent source of electric energy 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 of the 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 so. 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, 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 characteristics of a secondary battery. In a secondary battery there are two elements initially alike, or substantially so, in electric properties, and not separated in the electro-motive scale; both are, in the first instance, 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 electrical 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 the construction of the battery, but rather in its condition, so that the same battery may at one time be primary in its action and at another time secondary. When the chemical energy of the battery has an electric origin the battery is called a secondary one; when it has not such an origin it is a primary one. It is well-nigh impossible to reach an accurate and comprehensive definition, so that batteries of all varieties can be instantly classified. There are well-known primary batteries and well-known secondary batteries; but between these there is a narrow, debatable ground occupied by actual and suppositive hybridous structures which can hardly be included in any general definition or placed in either group. At this point it may be said, generally, that an ordinary well-known type of a primary battery does not, it is thought, become a secondary battery, as that term is understood by electricians, because it is partially restored by sending a reverse current through it. The possession of the knowledge that this may be done would not aid materially in the construction and operation of a secondary battery. The patent is addressed to those having a peculiar and technical knowledge of the subject. Loom Co. v. Higgins, 105 U.S. 580, 585. Terms of art are used. When, therefore, one electrician speaks to another of a secondary battery he does not mean, and will not be understood to refer to, an exhausted primary battery, but to the structure before described. For the purposes of this case no greater particularity or refinement of definition is necessary.

The claim further provides 'for an electrode consisting of a support coated, ' etc. It is insisted that by a necessary implication the claim is limited to the use of two similar electrodes. The argument in support of this theory is ingenious, but is answered by the plain language of the claim. An electrode cannot mean two electrodes. Had...