[1] The patent in controversy is not a pioneer ; the patentees only claim for it an improvement and development of the art as disclosed in a prior patent to them, No. 907,236, dated December 22, 1908. The patentees assert that in prior machines there was no way of controlling the vacuum automatically:
“So that with each pulsation of the piston of the air pump the entire contents of the milk chamber are emptied; and there is no way to prevent the milk from entering at some point the center of the milk chamber during the milking stroke of the pump; and no way of preventing a portion of the milk being drawn from the milk chamber into the flexible tube connected with the fpump and even into the pump itself.”
The patentees have endeavored to remedy these defects by an improved and simple apparatus. The claims- in controversy are quoted in full in the opinion of the District Judge and need not be repeated here. Claim 11 is the only one found in the original patent and differs somewhat in phraseology from that claim. It is as follows:
“In a cow-milking apparatus, a milk chamber having a valveless inlet means for exhausting air from the chamber and a substantially air-tight valved outlet closed by gravity and the exhaust of air from said chamber.”
We think it is clearly demonstrated by the proof that the patentees produced a meritorious invention in which, to use the language of Judge Ray:
“The suction upon the teats of the cow is realized at alternate strokes of the pump piston and they (the patentees) produced a device easily cleaned and sanitary in which the milk chamber is unobstructed, by moving parts or otherwise, and which is easily and quickly kept clean. The vacuum is gradually produced upon the out stroke of the pump piston and is gradually applied to the milk chamber, to the teat cups and teats of the cow. This is a great advantage, as the abrupt application of the vacuum makes a milking machine practically useless.”
In approaching the question .relating to the validity of the reissue— as such — we should bear in mind the fact that the Hinmans are practically the creators of this art. They were the first to produce a safe, efficient, satisfactory and comparatively inexpensive machine. The trial judge correctly says of it:
“This is the neatest, most operative and most sanitary of all and shows a marked and patentable improvement on the prior art.”
[2] Our examination of the prior art, as disclosed in the record, convinces us that the Hinmans have practically solved the problem by producing a compact, efficient and simple milking machine which avoids pre-existing defects. We also think that the defendant has appropriated the Hinman device. Regarding the reissue little need be said as the subject is fully treated in the opinion below. The difficulty grew out of some crude drawings made by the local attorney who was not a skilled draftsman. This mistake was corrected and the patent and drawings put in proper shape within a comparatively short time and without any intervening rights being destroyed or interfered with. Where this court is convinced that the patentee has made a meritorious *898invention it has been our steady purpose not to deprive him of its fruits based upon technical reasons only. Iowa Co. v. Montgomery, 234 Fed. 88, - C. C. A. -.
The decree is affirmed with costs.
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