Lindley v. Shepherd

• Decision Date: 06 February 1928
• Docket Number: No. 2033.,2033.
• Citation: 58 App. DC 31,24 F.2d 606
• Parties: LINDLEY v. SHEPHERD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

58 App. DC 31, 24 F.2d 606 (1928)

LINDLEY v. SHEPHERD.

No. 2033.

Court of Appeals of District of Columbia.

Submitted January 17, 1928.

Decided February 6, 1928.

M. E. Miller, of Washington, D. C., for appellant.

C. H. Potter and J. H. Brickenstein, both of Washington, D. C., E. L. Greenewald, of New York City, and R. H. Van Nest, of Niagara Falls, N. Y., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a decision of the Commissioner of Patents in an interference proceeding awarding priority to the appellee, Shepherd. The single claim involved is claim 5 of Shepherd's patent, reading as follows:

"5. A separator for storage cells comprising a thin sheet of insulating material having wear-resisting strips embedded in one face thereof."

Shepherd's application was filed on May 15, 1922, and his patent issued June 3, 1924. Lindley's application was filed April 10, 1922, and was copending when the Shepherd patent issued, but it then contained no claim similar in scope to the claim in issue.

The invention defined by this claim relates to improvements in separators for spacing and insulating the positive and negative plates of a storage battery cell. When used in automobiles, these cells are subject to vibration, and the separators, if made of thin sheets of porous insulating material, such as wood, are liable to deteriorate through wear. Shepherd hit upon the idea of prolonging the life of these separators, without increasing their thickness, and without materially increasing their cost, by embedding in one face of the separator sheet of insulating material, such as wood, strips of wear-resisting and acid-resistant material, such as vulcanite. His application as allowed contains six claims, including the claim in issue.

In the original Lindley specification, there is nothing to indicate that the separators are to be of insulating material, but it is provided that each separator shall have special grooves in its grooved face for receiving reinforcing strips, and that "these strips are made thicker than the grooves, so that portions of the strips will project from the grooves and thus engage the positive plate." The strips are to be of greater length than the separator, so that the lower ends will engage the bottom of the jar. "These strips may be formed of hard rubber, glass, or any other suitable material."

In Shepherd's construction, the faces of the wear-resisting strips being flush with the face of the separator sheet, it necessarily results that the sheet, when installed in the battery, actually contacts both a positive and a negative plate. It was for this reason that Shepherd contemplated that the separator sheets should be of insulating material, and that the reinforcing strips should be embedded therein. Lindley, on the contrary, contemplated and provided that his reinforcing strips should be of such thickness that they would project a substantial distance from the face of the separator sheet. Therefore he provided that these strips should be of insulating material. Only one of the faces of Lindley's separator sheet contacts with the battery plate. The other face is held from contact by the outwardly projecting reinforcing strips. It will thus be seen that it is not necessary, in the construction originally contemplated by Lindley, that the separator sheets should be of insulating material; nor was it necessary that the reinforcing strips should be "embedded" in the sheets, as contemplated by Shepherd. In fact, to have so embedded them would have rendered the device inoperative, if noninsulating material was used in the sheets. We here insert two figures illustrating the Shepherd construction and the original Lindley construction:

After Lindley saw the Shepherd patent, h...