Babson Bros. Co. v. Perfection Mfg. Corporation

• Decision Date: 22 September 1949
• Docket Number: Civ. A. No. 2732.
• Citation: 86 F. Supp. 754
• Parties: BABSON BROS. CO. et al. v. PERFECTION MFG. CORPORATION.
• Court: U.S. District Court — District of Minnesota

86 F. Supp. 754

BABSON BROS. CO. et al. v. PERFECTION MFG. CORPORATION.

Civ. A. No. 2732.

United States District Court D. Minnesota, Fourth Division.

September 22, 1949.

Schroeder, Merriam, Hofgren & Brady, Chicago, Ill., and Williamson & Williamson, Minneapolis, Minn., for plaintiffs.

Merchant & Merchant, Minneapolis, Minn., for defendant.

JOYCE, District Judge.

This is an action for infringment of McCornack patent No. 1,859,213 which was granted May 17, 1932 upon an application filed November 22, 1923. The patent relates to an "Improvement in Apparatus for Milking", and more particularly to a suspended type milking machine.

Plaintiffs in the action are Babson Bros. Company, suing as exclusive licensee under the patent in suit and manufacturers of the "Surge" milker embodying the elements of said patent, and Flora E. Flynn and Homer W. Wright, as successor trustees to Herbert McCornack, owners of the bare legal title to the patent. Defendant is the Perfection Manufacturing Corp. which has, since April or May of 1948, manufactured and sold an allegedly infringing suspended milker called the Perfection Model 12 Milker.

Plaintiffs charge that the following Claims of McCornack patent No. 1,859,213 have been infringed by defendant's Perfection Model 12 Milker:

Claim 4. In a milking machine of the character described, the combination with a milk receiving bucket carrying teat cups, of means for pivotally suspending the bucket from the cow's back in front of the udder and at a point above the center of gravity of the bucket and nearer the head of the cow than the center of gravity of the bucket when the teat cups are attached to the cow's teats, whereby the weight of the bucket will be caused to exert a downward and forward pull on the teats during the milking operation, but the bucket will not be caused to capsize if detached from the teats.

Claim 5. In a milking machine of the character described, the combination with a milk receiving bucket carrying teat cups, of means for suspending the bucket from the cow's back at a point nearer the head of the cow than the center of gravity of the bucket when the teat cups are attached to the cow's teats, whereby the weight of the bucket will be caused to exert a pull on the teats during the milking operation, said suspending means being constructed to yield and swing forward under the increasing weight of the milk which accumulates in the bucket during milking so as to increase the pull upon the teats, and flexible tension tubes transmitting the pull from the bucket to the teats.

Claim 6. In a milking machine of the character described, the combination of a milk receiving bucket, means for pivotally suspending the same under the cow in advance of the cow's udder, teat cups connected to the bucket, the connections between the teat cups and the bucket being flexible and of such length that when the cups are attached to the teats the bucket is swung upwardly and rearwardly from the normal freely hanging position which it would otherwise occupy when the suspending means is in operative position, and means for inducing forward and rearward swinging movement of the bucket toward and from the udder during milking.

Claim 7. In a milking machine of the character described, the combination of a milk receiving bucket, means for suspending the bucket beneath the cow in such manner that it is free to swing longitudinally of the cow, double chambered teat cups connected to the bucket, means for evacuating the bucket, and means for producing pulsations in the outer teat cup chambers, the connections between the teat cups and the bucket being flexible and of such length that when the teat cups are applied to the cow's teats the bucket is swung rearward from the normal pendulous position which it would otherwise occupy when the suspending means is in operative position so as to exert a pull upon the teats.

Claim 13. In a milking machine of the class described, the combination of a milk receiving bucket, means for suspending the same beneath the cow, means to evacuate the bucket, teat cups flexibly connected to the bucket and arranged to transmit the weight of the bucket to the teats, communicating passages between the teat cups and the bucket, and means in each passage to automatically shut off the vacuum to the connected teat cup if the cup comes off the teat.

Claim 16. In a milking machine of the character described, the combination of suspending means and a milk receiving bucket adapted to be supported thereby beneath the cow's body, said bucket having an opening in the top thereof closed by a lid, and having a handle fixed on the bucket independently of the lid and extending longitudinally above the bucket from the side opposite the lid to a point above the center of mass of the bucket, by which the bucket may be carried and poured, said handle and suspending means having interengaging members for hooking the bucket on the suspending means with freedom for fore and aft swinging.

Claim 19. In a milking machine of the character described, a milk receiving bucket, means for suspending the bucket beneath the cow, teat cups comprising teat cup shells and inflations removably mounted in said shells, said inflations having integral flexible tube portions detachably connected directly with said bucket and discharging the milk directly thereinto, means for evacuating the bucket, and means for producing pulsations in the teat cup shells.

Claim 23. In a milking machine of the class described, the combination of a milk receiving bucket, means for suspending the bucket beneath the cow's body, double chambered teat cups including shells, and inflations of flexible material in the shells, and short, flexible tension milk tubes integral with the inflations and forming a direct connection between the teat cups and the bucket, and distributing a portion of the weight of the bucket to the teats, in such manner that the teats are subjected to a tugging action.

Defendant contends that all of the foregoing Claims are invalid as anticipated by or as not amounting to invention over the perior art of record. It further contends that Claims 4, 5, 6, 7, and 23 are invalid as functional and incomplete. Finally, defendant denies infringement of Claims 4, 5, 6, 7, and 23.

In order to properly evaluate McCornack's contribution to the art of machine milking, it is necessary to briefly review prior developments in the field. In general, milking machines have been one of two types. In the "long-tube" or "floor" type milker, the milk receiving bucket is placed on the floor beside or near the cow, and from the bucket a tube extends to a "claw" or 4-branch connector beneath the cow, to which "claw" or connector the teat cups are attached by means of tubes. In the type of milking machine with which we are here concerned, the milk receiving bucket is suspended from the cow's back by means of one or more straps and the teat cups are attached to the bucket by tubes. Many machines of the latter type had been patented prior to McCormack's application for the patent in suit. These machines used one of three means for withdrawing the milk from the cow's udder. Two of these means, the "catheter" milker in which small tubes were inserted in the teats thereby causing the milk to drain from the udder and the "mechanical squeeze" milker which applied pressure to the outside of a cow's teat in an effort to effect a squeeze similar to that used in hand milking, proved impracticable and failed commercially. Early machines using the third means applied a vacuum to the teat thereby causing the bottom of the teat canal to open and the milk to be drawn off. The use of vacuum was further developed in double-acting milkers which not only applied a steady vacuum through the milk tube on the end of the teat, but at the same time acted through a pulsator and vacuum tube to apply vacuum intermittently around the outside of a flexible member within the teat cup so as to alternately squeeze and release the teat. Suspended milkers had used all three means of withdrawing the milk from the udder before McCornack claimed any invention. Furthermore, all suspended milkers have necessarily had certain elements in common, namely, a means of suspension, a milk receiving bucket, teat cups, and milk tubes connecting the teat cups to the bucket. In the prior art, one or more straps were used to suspend the milk receiving bucket or the teat cups or both from the cow's back. Earlier patentees of suspended milkers saw two advantages over "floor" type machines. Thus, it was early recognized that if a milk receiving bucket bearing teat cups was suspended from the cow's back, the milking apparatus would follow the movements of the cow and the teat cups would not become detached from the teats. Another advantage claimed in the prior art arose from the fact that a suspending means could be used to hold the teat cups up toward the teats and thereby minimize the possibility of the cups becoming detached. At the time McCornack filed his application no suspended milkers were being manufactured for, or sold on, the domestic market.

There is another factor to be considered before McCornack's contribution to the art can be accurately measured, and that relates to the anatomy of a cow's udder. Expert testimony established certain facts with respect thereto which the court considers important in the present inquiry. Milk from the secreting tissue of the gland or udder of a cow accumulates in the ducts of the udder. The primary ducts extend from the upper portions of the udder in a general downward and forward direction to the cisterns of the udder and teats. From the primary ducts, smaller ducts extend laterally in all directions. On most cows the teats have a forward tilt which approximates the angle of descent of the primary ducts. A forward and downward tug and pull upon the teats during the milking operation is most effective in securing a flow of...