the reason that a credit is given in plaintiff's statement of $1,295, which is the true amount of said account. The general reasons set forth by plaintiff in his motion for judgment, viz., that the affidavit of defense is evasive, and not such a specific and particular reply to the statements of plaintiff's affidavit as required by the rules of court, are also intended by the plaintiff to apply to this portion of the affidavit of defense.,

Plaintiff's suit is for a balance due after allowing certain credits. Its total claim was $14,217.85, from which it deducts certain payments made by defendant on account, certain overcharges, value of articles returned, and an item designated as "a/c Conrad, $1,295," leaving a balance due of $7,749.25. The counsel for defendant has displayed great ingenuity in their effort to use the order to Conard as a defense in this case, without admitting a liability which would be disastrous to the defense in the Conard suits. But in my judgment the averments in the affidavit in this matter do not constitute a defense. It is perhaps doubtful under the authorities whether there was such an acceptance by defendant of the order to pay to Conard a portion of the debt it owed plaintiff as to bind it and make the assignment of the part of the debt valid. Mandeville v. Welch, 5 Wheat. 277; Jermyn v. Moffitt, 75 Pa. St. 399. The defendant disputes the validity of the assignment to Conard, saying in this case: "The validity of which assignment is in suit and undetermined." It is unnecessary to consider this phase of the case, however, because the affidavit does not specifically deny the liability of the defendant for the amount of plaintiff's claim, or claim a further credit or deduction for the amount of the Conard order; nor does it set forth specifically and with certainty such facts as would be a defense. It is apparent that the item of credit in plaintiff's statement, "a/c Conrad, $1,295.00," refers to this matter, and that Conard and Conrad are one and the same, the difference in names being an easily understood clerical error. The affidavit carefully avoids the usual statement in such cases, that plaintiff's statement of account is wrong, and that defendant is entitled to a further credit on account of the Conard order, which could so easily have been made if the item in plaintiff's statement referred to a different credit. As against plaintiff's specific statement that defendant is entitled to credits aggregating a certain amount, leaving a certain ascertained balance due plaintiff, the defendant's statement of the Conard matter shows no defense. If it is shown hereafter that there is an outstanding order to Conard for which the defendant is entitled by acceptance or payment to a further credit, the court has power to make such an order as will prevent injustice. The plaintiff, in liquidating its judgment, should give defendant credit for five dollars, being the difference between its credit and the apparent amount of the Conard order. Upon the whole case the defendant has not shown a sufficient defense to plaintiff's claim, and the latter is entitled to judgment.

BRUSH ELECTRIC Co. v. ELECTRICAL ACCUMULATOR Co. et al.

(Circuit Court, S. D. New York. July 23, 1891.)

1. PATENTS FOR INVENTIONS-ELECTRIC BATTERIES-INFRINGEMENT.

The claim of letters patent No. 260,654, issued July 4, 1882, to Charles F. Brush, for improvement in forming the plates of secondary electric batteries, consisting in forming receptacles for oxide of lead in its surface, then applying oxide of lead to the plate and within such receptacles, and afterwards subjecting the oxide of lead to pressure, is not infringed by applying the oxide to the plates with a wooden trowel in the hands of the workman without afterwards subjecting it to pressure. &SAME-PATENTABILITY-INVENTION.

Claims Nos. 11 and 13 of letters patent No. 337,299, issued March 2, 1886, to Charles F. Brush, for improvements in secondary electric batteries, are void for lack of invention, since such claims refer only to the use of red lead in the preparation of the plates, and the specification of the patent states that red lead is not as good for the purpose as peroxide of lead, but may be used instead of the peroxide, because it is cheaper.

8. SAME-ANTICIPATION.

Letters patent No. 837,299, issued March 2, 1886, to Charles F. Brush for improvements in secondary electric batteries, are not invalidated by letters patent No. 260,653 and No. 276,155, issued to him prior to 1886 for other improvements subsidiary to the main invention described in said patent No. 337,299, for the reason that said patent, though issued after the others, was applied for before them, and is referred to in their specifications. Delay in the patent-office, for which the inventor is in no way responsible, cannot be charged to him.

4. SAME-FORFEITURE-FOREIGN PATENT.

Said patents No. 337,299 and No. 266,090 did not expire with the Italian patent issued to Mr. Brush, August 8, 1882, since the invention described in the Italian patent is not identical with those described in the United States patents.

In Equity.

W. C. Witter and W. H. Kenyon, for complainant.
Frederic H. Betts, for defendants.

COXE, J. This is an equity action founded upon three letters patent, granted to Charles F. Brush for improvements in secondary batteries, as follows: No.337,299, granted March 2, 1886, No. 260,654, granted July 4, 1882, and No. 266,090, granted October 17, 1882. These patents and one other, No. 337,298, granted March 2, 1886, were before this court in Brush Electric Co. v. Julien Electric Co., 41 Fed. Rep. 679. The court there decided that No. 337,298 and No. 337,299 were for the same invention, and intimated, as the inventor and his expert apparently regarded the former as the broader patent, that the difficulty might be met by a surrender of the latter, or by a disclaimer of similar claims therein. This solution of the difficulty was thrown out as a suggestion merely, the final disposition of the patents being left till the settlement of the decree. It was not the intention of the court to decide that one of these patents was entitled to preference over the other. For the reason stated and for convenience of illustration No. 337,298 was given prominence in the discussion, but the conclusion would have been the same had the position of the patents been reversed. Upon the settlement of the decree the complainant selected No. 337,299 as the patent upon which it chose to rely, and withdrew No. 337,298 from the consideration of the court. This was done without objection by the defendant in that case. On the

15th of July, 1890, after the decree in the Brush-Julien Case was entered, the complainant withdrew No. 337,298 from this cause and an order was entered dismissing the bill as to that patent. The cause has since proceeded upon the three patents as stated. In the prior litigations involving the subject-matter of these patents the following propositions have been decided: First. That Mr. Brush was the first in this country to hold absorptive substance, in the form of dry powder, in place on the supports of a secondary battery by paper or equivalent material, and the first who rammed or pressed it into grooves or receptacles in the plates. Second. That No. 337,298 and No. 337,299 are for the same invention and that the complainant was not entitled to both patents, but was entitled to one. Third. The complainant having elected to hold No. 337,299 it was decided, by the decree, that claims Nos. 1, 2, 3, 6, 7, 11, 12, and 13 were valid, the word "perforations" in claims Nos. 6 and 7 being construed as synonymous with "cells or cavities." Fourth. That the claim of No. 260,654 was not infringed by the application of the absorptive substance to the grids by a trowel or spatula. Fifth. That the defendants, by the use of supports filled with rows of uniform square holes, did not infringe the "rib claims" of No. 266,090. Sixth. That claims Nos. 7 and 14 of No. 266,090, the latter claim being limited to the "perforations" described, were valid and infringed. Seventh. That No. 337,298 (and by implication No. 337,299) was not invalidated by patents Nos. 261,512 and 261,995 granted to Mr. Brush, July 18, and August 1, 1882, respectively. Eighth. That No. 337,298 (and by implication No. 337,299) was not invalidated by the expiration of the Brush Italian patent. Brush Electric Co. v. Julien Electric Co., 41 Fed. Rep. 679; Electrical Accumulator Co. v. Julien Electric Co., 38 Fed. Rep. 126. All of these conclusions were reached after careful study and mature deliberation, and now, having been re-examined in the light of the present record, arguments and briefs, except as to claims Nos. 11 and 13 of No. 337,299, are reaffirmed. No useful purpose can be subserved by again discussing them, as such a task will only involve a repetition of what has been said already in the other cases.

The proof of infringement is substantially the same as in the BrushJulien Case. It is more complete as to the manner in which the active material is applied to the plates, but in this respect it only emphasizes the former decision as to the non-infringement of the claim of No. 260,654. That claim is as follows:

"The method of forming the plates of a secondary battery, consisting in forming receptacles for oxide of lead in its surface, then applying oxide of lead to the plate and within such receptacles, and afterwards subjecting the oxide of lead to pressure."

The claim clearly contemplates not only the treatment adopted by the defendants, but afterwards subjecting the oxide to pressure. The defendants apply the oxide to the plates and within the receptacles with a wooden trowel in the hands of the workman, and there they stop. They do not subject the oxide to pressure afterwards.

The questions arising upon the expiration of the Italian patent and as v.47F.no.1-4

to the validity of the "red lead claims" are, however, presented by this record in a new and different aspect and may, with entire propriety, be examined de novo, together with the question, not heretofore considered, relating to the effect of Brush patents Nos. 260,653 and 276,155 upon the broad patent in suit.

It is thought that claims Nos. 11 and 13 of No. 337,299-the red lead claims-are void for lack of invention. The specification, after referring to lead oxide as the active material, which is primarily and mechanically applied to the plates, proceeds:

"Peroxide is the best oxide of lead to use in the preparation of the plates; but as this is rather expensive to prepare red lead or minium may be used."

If the record contained nothing but this statement the claims could not be upheld. After the invention of a support primarily coated with mechanically applied oxide of lead, merely coating the plate with the commonest, cheapest and best known form of lead oxide did not require the exercise of the inventive faculties. Especially is this so when the patentee himself asserts that the best results can be obtained by using peroxide. It would seem that the use of red lead would at once occur to any one who had even a superficial knowledge of the art. There is no more novelty in using red lead for the coatings than there is in using cast lead for the plates. Brush Electric Co. v. Julien Electric Co., supra, 692. The following paragraph taken from defendants' brief states with clearness and precision the views of the court upon this subject:

"The specification says that red lead is inferior to the peroxide, and we submit that no valid claim can be founded upon the use of an inferior article when it is shown that the use of the superior article is old."

Patent No. 337,299, at least so far as its broad claims are concerned, is not invalidated by anything contained in the Brush patents No. 260,653 and No. 276,155. The application for the former (No. 260,653) was filed June 15, 1882, a year and two days after the application of No. 337,299. No one can read the specification of No. 260,653 without being impressed with the fact that the inventor intended to confine the patent to a single point, namely the form of the electrodes. He expressly says so.

"This application is a division of my application designated as 'Case 1'. (337,298-9) filed June 13, 1881, in which other features of my invention are claimed. For convenience in distinguishing this invention among others of mine in the class of secondary batteries I have denominated it ‘Case 1, Division A.'"

Again he says:

"My invention consists essentially in a secondary battery element consisting of a structure of étagère-like form, containing in the spaces between its shelves lead in a finely divided state."

The claim is:

"In a secondary battery, an element consisting of a structure of étagère-like form, containing in the spaces between its shelves lead in a finely divided state, substantially as set forth."

It is true that the broad invention is described, but it is equally true that it is not claimed. It was hardly possible for the patentee to describe the subsidiary invention without disclosing his main invention. Having disclosed it, had he permitted the patent to issue without warning or reservation, and after the broad invention became public property, had filed an application covering what he thus relinquished to others, it is probable that he would have been informed either in the patentoffice or in the courts that his application came too late. But that is not this case. Before his application for the subordinate invention he had applied for the superior one. In the former he expressly informed the public that it was but a division of the latter. He could do no more. The delay in the patent-office cannot be charged to him. Even though the inventor were responsible for the issue of the divisional before the principal patent and he was not-the fact of such prior issue in no way misled the public. They never for a moment acquired the right to use the broad invention. An infringer with the statements on the face of No. 260,653 before him would scarcely have the hardihood to assert that he supposed the broad invention was released. No court would listen to such a plea. The claims of that patent did not protect Mr. Brush in the use of the broad invention. A person who did not use an "etagereshaped" plate could, if no other patent prevented, use the broad invention with perfect impunity. No. 337,299 was intended to prevent such use. The court has not been able to discover an authority holding a broad patent invalid in such circumstances. None has been cited by counsel. What is true of No. 260,653 is also true of No. 276,155.

Mr. Brush was the first, in this country, to make the broad invention as stated above. He is entitled to the fruits of his invention. It is the policy of the law to reward him. Where the court can see that a patentee has produced an invention of real merit it should not be unduly industrious in endeavoring to discover some statement or act of his by which, on technical grounds, his rights may be forfeited. It should rather be sedulous to protect him. Whether or not the improvements patented by Nos. 260,653 and 276,155 are the same as the improvements covered by some of the claims of Nos. 337,299 and 266,090 it is, perhaps, unnecessary to decide, for none of the claims in issue and infringed are so affected. It seems that in his anxiety to claim his invention in every conceivable form the patentee has involved himself in a labyrinth of descriptions and claims in which electrician and lawyer alike are quite apt to become confused. What Mr. Brush accomplished in 1879 and 1880 can be embraced in a brief, clear and concise statement. What he actually did is the test by which his patents must be judged. He is entitled to what he invented and only this. His patents can receive no broader construction because he describes his inventions with irksome prolixity and gives to the same structure a wearisome variety of names. The nomenclaturist should not seek the reward for his labors in the patent-office. A person is not entitled to a patent because he has invented a new word. The danger and impropriety of holding a number of claims which can be differentiated only by the most abstruse and metaphys