The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is a suit in equity for the alleged infringement of claims 1, 3, 11, and 12 of the Holmes patent, No. 1,769,836, granted July 1, 1931.
The patent relates to an improvement in a water feed control. Plaintiff's title to the patent in suit is not in dispute, it was conceded on the trial that, if the patent is valid, it was infringed.
Claims 1, 3, 11, and 12, which are relied upon by the plaintiff, are as follows:
"Claim 1. A water feed device adapted to deliver water from a source of supply to a sterilizing receptacle, provided with an air gap across which water will be projected to the receptacle under full flow but down the side of which water will run adhering to the side thereof under slow flow such as produced by a leaky valve whereby water will only be added to said sterilizer when it is desired to do so."
"Claim 3. A device adapted to deliver water from a source of supply to a receptacle, provided with an air gap across which water will be projected to the receptacle under full flow but down which water will run under slow flow such as produced by a leaky valve, the water supply conduit to said device having a vacuum-breaking air inlet port whereby contamination from said receptacle is prevented from reaching said water supply."
"Claim 11. A water feed device adapted to deliver water from a source of supply to a sterilizer, provided with an air gap across which water will be projected to the sterilizer under full flow but down which water will run under slow flow such as produced by a leaky valve, the water supply conduit to said sterilizer having a vacuum breaking mcans."
"Claim 12. A device for delivering water from a source of supply to a receptacle comprising a shell provided in its bottom with a waste conduit and provided higher up at one side with a port for delivery to the receptacle, an air gap across which water will be projected into said port and hence into said receptacle under normal flow, but down which air gap water will run to said waste conduit under slow flow such as produced by a leaky valve."
Defendant claims that the patent is invalid, and that the defendant American Sterilizer Company has independently invented and developed the device of the patent in suit, and that that defendant had a license from the inventor.
The invention is described in the patent as follows:
"My invention relates to an improvement in a water feed control and its novelty consists in the adaptation and arrangement of parts as will be more fully hereinafter pointed out.
"In the following description and in the claims, the term 'tank' is herein used in a broad sense to include a receptacle for receiving water from a source of supply such as a city water main.
"In the present state of this art, it is the usual practice to fill such tanks by supply connections arranged to deliver into the tank below the high or normally maintained water level in the tank. In such arrangements, should the house supply be shut off and drained or if, for any reason, partial vacuum should be produced in the supply pipe, there will be produced a back-flow of water from the tank into the house supply pipes. If the water in the tank is chemically treated or if polluted in any was so that it is not a good drinking water, the back-flow into the tank and into the house pipes becomes a very serious matter. In fact, serious results have followed from back-flow such as just indicated.
"Also, if the valve in the supply pipe should leak, there would be a slow flow of water from the supply, assumed to be the city water supply, into the tank and if the water in the tank should be sterilized water such as used in sterilizers, such leakage would, as is obvious, be a serious matter. In the above indicated hitherto used arrangements for supplying water from a source such as city water to a tank such as a sterilizer, for example, other undesirable actions have ...