Gynex Corporation v. Dilex Institute of F. Hygiene
| Decision Date | 27 July 1936 |
| Docket Number | No. 393.,393. |
| Citation | 85 F.2d 103 |
| Parties | GYNEX CORPORATION et al. v. DILEX INSTITUTE OF FEMININE HYGIENE, Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Sylvester & Harris, of New York City (Irving F. Goodfriend and Charles L. Sylvester, both of New York City, and Sidney Kaminsky, of New York City, of counsel), for appellants.
Howard P. King, of New York City, for appellees.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiffs charge infringement of United States patent No. 1,870,942; of trade-marks Nos. 276,732, 283,535, and 293,004; and unfair competition. They were successful on all issues in the court below, and the defendants have appealed from the decree.
All the corporations involved in the litigation were organized under the laws of New York and have their principal places of business in New York City. Defendants Door and McCarthy are employees of defendant Dilex Institute of Feminine Hygiene, Inc.
Gynex Corporation owns patent No. 1,870,942 for a syringe which was issued August 9, 1932, upon the application of Dana C. Beatty, filed May 26, 1928. Trade-mark No. 276,732 was registered in its name, and is the word "Gynex" made up of letters having a peculiar conformation. Nos. 283,535 and 293,004 both show the figure of a woman standing upon a double block base which bears the inscription "Bureau of Feminine Hygiene" and whose upraised arms support a block bar with the word "Knowledge."
The Beatty Patent.
The first sentence in the specifications states that: "This invention relates to syringes and more particularly to mechanically dilated vaginal syringes and the method of making the same." The principal object of Beatty was to construct a vaginal syringe which would be in normal position of relatively small diameter in cross-section throughout its length, and which was equipped with soft rubber fingers at the far end that could be dilated in such a way that extreme extension would occur at, or very near, the end, thereby permitting whatever was to be injected through the syringe the better to find its way to the parts it was desired to reach. To do this Beatty took a hollow metal sleeve of the wanted outer and inner diameter which he reduced at one end to form a neck and shoulder. He took a soft rubber tube with a rounded closed end which had an inner diameter of the right size to permit the open end to be drawn over the metal neck where it fitted tightly and abutted snugly against the shoulder to give a uniform outer diameter to the sleeve where it was all metal; where partly metal and partly rubber; and where it was all rubber tip. This tip was of the desired length, and had longitudinal slits between its base, the part drawn over the metal neck of the sleeve, and the rounded end which divided the intermediate rubber into several strips or "fingers" of equal size. At the other end of the metal sleeve he placed a loop handle. Inside the sleeve was a round metal tube of smaller diameter but greater length. One end of it was attached by a button head to the extreme rounded end of the rubber tip; the other end extended out beyond the loop handle of the sleeve and was given a suitable head to be inserted within the end of a rubber tube attached to a collapsible bulb. What has been called the loop handle consisted of two bow pieces made of rubber or other resilient material which were joined at their ends to rings so that the bows were opposite each other as are the ends of an oval. The two connecting rings were fitted, one in a collar groove at the end of the sleeve opposite the rubber tip and the other in a similar groove near the end of the inner member over which the rubber bulb tube was placed, thus mounting the loop handle rotably on the named ends of the sleeve and inner member, so that, when the handle was compressed, the inner member was drawn back in the sleeve pulling with it the rounded end of the rubber tip to which it was attached by the button fastener thereby causing the rubber fingers to bulge outwardly. In accordance with the disclosure, the syringe was to be operated by insertion when in its normal size throughout its length, and then by compressing the loop handle the tip became a dilator, since it was held from slipping back over the sleeve by the shoulder against which its base rested. The rubber was so formed that extreme expansion occurred at or very near the rounded end making a nearly flat conformation at the end. This construction appears to make an efficient and highly satisfactory vaginal syringe.
But whether there was any invention disclosed is quite another matter, which depends upon what Beatty did, if anything, which had not before been disclosed in such a way that it had become free for anybody to use. We think he did nothing but construct, with such minor differences as would readily occur to any good mechanic, such a vaginal syringe as any one was free to make. In 1869, patent No. 58,695 for an improved syringe was issued to William J. Davidson. He disclosed a vaginal syringe having a nozzle at the tip behind which were elastic or expanding ribs that could be bowed out by turning a screw at the opposite end of the syringe. Expansion could be controlled within a desired limit by setting a screw in the slide member that ran in a slot in the sleeve. Some contention is made that Davidson even disclosed rubber fingers by his description of the ribs as "elastic or expanding," but all the rest of his disclosure indicates that they were in fact metal and but a slotted portion of the sleeve. However, with the sole exception of the use of rubber fingers, Davidson disclosed all that Beatty did so far as the claims now sued upon are concerned. And at the time Beatty applied for his patent the use of rubber fingers was old in the patent sense.
On March 31, 1926, William Friedman filed in the Patent Office his application for a patent for a mechanically dilated vaginal syringe which disclosed rubber fingers which were made to project outwardly after insertion by slidable movement of a metal tube within a sleeve. And, as early as 1885, a patent, No. 318,535...
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