Collins v. Emerson, 3096.

• Decision Date: 25 February 1936
• Docket Number: No. 3096.,3096.
• Parties: COLLINS et al. v. EMERSON.
• Court: U.S. Court of Appeals — First Circuit

82 F.2d 197 (1936)

COLLINS et al. v. EMERSON.

No. 3096.

Circuit Court of Appeals, First Circuit.

February 25, 1936.

Nelson Littell, of New York City (Grafton L. Wilson and Hale & Dorr, all of Boston, Mass., on the brief), for appellants.

Robert L. Thompson, of Boston, Mass. (Robert Cushman and Roberts, Cushman & Woodberry, all of Boston, Mass., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

BINGHAM, Circuit Judge.

This is a suit in equity for infringement of letters patent No. 1,834,580, applied for July 23, 1929, issued December 1, 1931, to Philip Drinker and others; letters patent No. 1,906,453, applied for November 23, 1931, and issued May 7, 1933, to Philip Drinker and others; and letters patent No. 1,906,844, applied for November 27, 1931, and issued May 2, 1933, to Philip Drinker and others. These patents are now owned by Warren E. Collins, Warren E. Collins, Jr., and Walter G. Chick, individually and as trustees, and the sole licensee is Warren E. Collins, Inc., all of whom are plaintiffs in this action. The issues are validity and infringement.

In the first patent the claims in issue are 1, 2, 3, 6, 7, 8, 9, 10, 11. In the District Court Nos. 1, 2, 3, 6, 8, 9, 10, and 11 of these claims were held invalid for want of invention, unless limited to the preferred pumping means, and, if so limited, they were not infringed, and as to claim 7 calling for "means to control the temperature within said casing including a warming means, cooling means and ventilating means, said housing having gauges whereby said internal conditions may be known" — the gauges being the thermometer 30 and the manometer 34 in figure 1 — the court found that the defendant's apparatus contained a manometer, but no thermometer and no cooling means and did not infringe that claim. The second patent was held invalid as to the claims in issue, for want of invention, and a like holding was made as to the claims in issue in the third patent.

All three patents relate to a device for producing artificial respiration through mechanical means by a method well known since 1876, and are commonly spoken of as artificial respirators. These devices are used for producing artificial respiration in patients unable to breath naturally, as in the case of a sufferer from infantile paralysis whose lung muscles are affected, victims of gas poisoning, electric shocks, drowning, and asphyxia of new born babies. The device is old and simple. It consists of a casing, sufficiently air-tight to hold alternately reduced and increased air pressure, inclosing the body of the patient up to the neck, with his nose and mouth outside the casing exposed to the atmosphere, or having his entire body inclosed within the casing, his mouth and nose being in communication with the outside atmosphere by means of a tube or perforated diaphragm; and an air pump or bellows connected to the casing for producing alternately a partial vacuum (negative pressure) and positive pressure (at least atmospheric pressure) within the casing. When a partial vacuum is produced within the casing, the atmospheric pressure outside forces air through the patient's nose or mouth, expanding his lungs; and when positive pressure is produced the air within the patient's lungs is forced out through the nose and mouth. By alternately creating the condition of negative and positive pressure within the casing at intervals corresponding generally with the normal rate of respiration, artificial respiration is established.

The first patent in suit (No. 1,834,580) is an artificial respirator consisting of a casing 10 having an open end which may be closed by a removable wall section or cover 14, and a sliding bed 18 upon which the patient may be moved into or out of the casing through the opening at the end. The removable wall section or cover 14 has a central aperture in which a rubber collar is fastened by means of a circular wooden rim, and having several bolts inserted through the rim, the rubber collar, and wall section or cover 14. Within the casing is an electric light 32 and a thermometer 30. Outside the casing, but connected with its interior, is a manometer 34 to indicate the pressure within the casing. The pressure within the casing is varied by two pumps 38 and 39, the first being connected to the pipe 40 and the second to the pipe 42. These pipes converge by means of a Y-joint 48 into a single pipe 50 connected with the interior of the casing. One pump creates negative pressure or suction, the other positive pressure. The pumps run continuously at a set speed but are so arranged that they are never both connected at the same time with the Y-joint, and, consequently, alternative negative and positive pressures are created in the casing. The amount of negative or positive pressure is controlled by a valve 70 which varies the size of the air passage in pipe 50. By decreasing the size of the air passage in said pipe, the amount of pressure is decreased. The temperature in the casing "may be raised at any time by means of an electric light 32, or lowered by passing air through a suitable cooling medium."

In the operation of the machine the patient reclines upon the bed with his head extending out through the rubber collar, resting upon a head rest. When negative pressure (partial vacuum) is created in the casing, the patient's lungs are expanded and the atmospheric pressure forces air into his lungs through his nose and mouth. When positive pressure is created within the casing, the patient's lungs are collapsed, forcing the air from the lungs out through his nose and mouth.

The patentees state that the primary object of their invention is "to provide an apparatus which will simulate natural breathing in the patient, both as to the periods of exhalation and inhalation and as to the quantity of air drawn into the lungs of the patient, thus resulting in artificial breathing which will be regular and rythmic." Means are provided for regulating the period of exhalation and inhalation. The quantity of air drawn into the lungs of the patient depends upon the amount of negative pressure in the casing, which may be varied by valve 70. The remaining objects of the device, as stated by the patentees, are to provide an apparatus in which the patient would be at ease during treatment and in which he can breathe naturally, if so inclined, and in which he can talk and sleep without discomfort and without discontinuing the treatment. These objects are accomplished by providing the bed upon which the patient can recline and a rest for his head outside the casing.

Of the claims in issue in the first patent, the plaintiffs state that claim 1 is sufficiently illustrative. That claim reads as follows:

"1. In an apparatus for producing artificial respiration, a casing constructed to receive the major portion of the body of a patient, a bed which is slidable into and out of said casing, said casing having a removable wall section connected to said bed and including an opening through which the head of a patient may be passed, a sealing member positioned in said opening and formed with a restricted opening adapted to fit snugly around the neck of the patient, means for forming a seal between said movable wall and the casing and means for producing alternate variations of pressure within said casing."

The elements embodied in this claim are (1) a casing long and large enough to receive the body of the patient; (2) a slidable bed; (3) a removable end wall section of the casing connected to the bed, the end wall section having an opening for the head of the patient; (4) a sealing member (a pliable rubber collar) positioned in the opening of the end wall section, the sealing member or collar having a restricted opening to fit the neck of the patient; (5) means for sealing the end wall to the casing; and (6) means for producing alternate variations of pressure in the casing.

Claim 2 has all the elements of claim 1, except that the removable wall section or closure is not connected to the slidable bed or carriage. Claim 3 is like claim 1, having its removable wall section or closure connected to the slidable bed or carriage. Claim 6 does not differ from claims 1 and 3 except that it is more restricted and specific. Claim 7 is like claims 1, 3, and 6, except that it is still more restricted by having "means to control the temperature within said casing including a warming means, cooling means and a ventilating means, said housing having gauges whereby said internal conditions may be known." Claim 8 does not differ from claim 2. Claim 9 includes an adjustable head rest co-operating with a flexible rubber sheet or collar. It is broad enough to include an adjustable head rest either separately constructed or attached to the removable wall section. Claim 10 is like claim 9, except that it claims means for clamping the outer edges of the rubber sheet or collar to the removable wall and claims a "head rest." It is broad enough to include a head rest adjustable or nonadjustable, whether constructed separately or attached to the removable wall section. Claim 11 is like claim 10.

In the District Court it was found that claim 7 was not infringed by the defendant's device, as it does not include all of the elements of claim 7. With this conclusion we fully agree.

The District Court also found that adjustable head rests were old, having been in common use in dentists' and barbers' chairs for many years, and inferentially found that nonadjustable head rests were likewise old. The Woillez publication of June 20, 1876, discloses an "appropriate support" (adjustable or nonadjustable) for the head, for use in connection with a respirator for inducing normal breathing; and as adjustable and nonadjustable head rests were old, we do not think it was invention to provide one either for use when attached or not attached to the removable wall of a respirator. See Exhibit 6, Binger and Davis...