(dissenting in part). I concur with the majority in holding claim 7 valid, but disagree upon the question of infringement. -
At the arguments in this case I was strongly impressed with the idea that Gaulin’s conception was not only original, but meritorious, and while the conception was not pioneer, in the sense that it concerned a device which was to be first in the field with reference to mixing milk and other liquids, that it was pioneer in the sense that Gaulin originated the idea of forcing milk and cream, and other liquids^ under high pressure, between very closely adjacent surfaces, under such circumstances as to successfully break down fatty globules contained in heterogeneous liquid, like milk or cream; and that the merit of the means which he described for doing it was such as to make the device a commercial success.
Further examination of the case confirms me in such views.
The fact that the mechanical structure made in accordance with Gaulin’s original conception was the first to do such work successfully is sufficient to put it into the field of rules which govern pioneer patents, and therefore entitles the claim in question to a liberal construction, with the view of protecting the substantial features of the invention.
Judges in other circuits, in cases before them upon different claims of the Gaulin patent, have held to this view as to the character of the invention, and it seems to me to be the right one. A conception so far original and so meritorious as that of Gaulin should not lose protection as against a party who adopts the Gaulin idea and changes a little the mechanical means described.
It seems to me that the alleged infringing machine has the substantial characteristics of the Gaulin invention, and that the case should not be turned against the Gaulin conception because the alleged infringing machine is mechanically different in.the particular pointed out in the majority opinion.
It would seem that Gaulin did not have in mind much elasticity, but, in the practical sense, rigidity, because he says in his specification that the flow was to be—
‘‘between adjustable surfaces so arranged as to be adaptable «exactly one against tbe other and maintained pressed elastically and strongly one against tbe other.” -
Thus the liquid was to be forced between surfaces, which were to be adapted exactly and pressed strongly one against the other.
Under that view, it does not seem that claim 7 should be so narrowly construed as to exempt a party from its operation—who has, in all essential respects, adopted the Gaulin conception as to high velocity and high pressure in the direction of surfaces closely adjacent one to the other, as well as the general ideas of construction and of means *395as pointed out by Gaulin—because be has made the surfaces through which the liquid passes, and the oriñce, mechanically, a little more rigid, or even altogether rigid.
Of course, if the Gaulin conception were a narrow one, and the circumstances were such as to require a literal construction in respect to precise mechanical means, the alleged infringing machine might, perhaps, be differentiated. But that is not the rule of construction which should be applied to an invention involving the merit that this one does.
Under the rule of construction which the circumstances of this case would seem to require, I cannot do otherwise than view the alleged infringing machine as one which differs only in mechanical detail from that covered by claim 7 of the Gaulin patent, because, aside from the mechanical detail referred to, the scheme is substantially that of Gaulin.
For these reasons I think the defendant’s device is one which infringes the plaintiff’s rights.