Heidbrink v. McKesson
| Decision Date | 17 July 1923 |
| Docket Number | 3781,3782. |
| Citation | 290 F. 665 |
| Parties | HEIDBRINK et al. v. McKESSON. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeals from the District Court of the United States for the Western Division of the Northern District of Ohio; D. C. Westenhaver Judge.
Suit by Jay A. Heidbrink and others against Elmer I. McKesson, in which defendant set up counterclaim. The bill and counterclaim were dismissed, and both parties appeal. Affirmed.
1. Patents 328-- 1,265,910, for device for administering anaesthetics, held invalid.
Heidbrink patent, No. 1,265,910, claims 1 and 2, relating to a device for administering anaesthetics, held invalid, because functional.
2. Patents 328-- 1,309,686, for device for administering anaesthetics, claims 6 and 7, held not infringed.
Heidbrink patent No. 1,309,686, claims 6 and 7, relating to a device for administering anaesthetics, held not infringed.
3. Patents 328-- 1,028,582, for device for administering anaesthetics, held not infringed.
McKesson patent, No. 1,028,582, claims 1, 7, 8, 9, 10 and 14 relating to a device for administering anaesthetics, held not infringed.
4. Patents 328-- 1,028,583, for device for administering anaesthetics, held not infringed.
McKesson patent, No. 1,028,583, claims 2, 8, and 9, relating to a device for administering anaesthetics, held not infringed.
5. Patents 328-- 1,320,900, for device for administering anaesthetics, held not infringed.
McKesson patent, No. 1,320,900, relating to a device for administering anaesthetics, held not infringed.
F. A Whiteley, of Minneapolis, Minn., for appellants and cross-appellees.
George E. Kirk, of Toledo, Ohio, for appellee and cross-appellant.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
These patents relate to devices for administering anaesthetics. Nitrous oxide was commonly used where effectiveness for very short periods was sufficient, as in tooth extraction; but if its administration was long continued it became dangerous. Accordingly a process was developed by which oxygen could be mixed with the nitrous oxide, and a more prolonged use of the anaesthetic became feasible. In practice, the operator procured his gases from prepared tanks, which contained the respective gases at high pressure, and in that form were a market product. It was found that a desirable mixture was approximately in proportion of one part of oxygen to four parts of nitrous oxide, and that this proportion, or such slight variance as the particular patient or the immediate exigencies of the case might require, must be maintained with substantial accuracy. A variation of the oxygen content of as much as 1 or 2 per cent. from the right proportion, might produce a loss of the anaesthesia, or a loss of life.
For the purpose of adjusting proportions to fit the needs of the patient, and for the purpose of maintaining proportions when fixed, and since the relative pressure of the supply tanks might be constantly changing, the anaesthetist had to resort to frequent and perhaps almost continuous manual adjustment of the outlet valves upon the two tanks. The safe use of the method, therefore, required the exclusive attention of a skilled anaesthetist, and even he could judge of the quality of the mixture only by the effect produced on the patient-- a judgment sometimes formed too late to be useful. Heidbrink claims to have been the first to devise any apparatus by which the respective pressures of the two gases, in their conduits leading from their supply tanks into the mixing chamber, and thus their respective predetermined flow volumes, could be automatically kept constant, whereby the attention and skill required of the anaesthetist were greatly reduced and the utility of the method much advanced. He also claims that he was the first to produce any device by which when the volume of the flow from the mixing chamber to the patient was increased at the will of the operator, the existing proportions of the mixture would be automatically maintained. The patents which he thinks secure to him these broad inventions are No. 1,265,910, dated May 14, 1918, and No. 1,309,686, dated July 15, 1919. In the court below he brought suit against McKesson, based upon claims 1 and 2 of the first and claims 6 and 7 of the second. These claims are given in the margin. [1] Heidbrink's application for No. 1,309,686 was filed November 23, 1911, and for No. 1,265,910, September 26, 1912. In 1910 McKesson filed application for a patent upon a device for using these two gases to produce anaesthesia, and this application resulted in patent No. 1,028,582, dated June 4, 1912. He also had patent No. 1,028,583, issued June 4, 1912, upon application filed May 1, 1911, covering improvements in one feature of his apparatus. In 1913, having devised further improvements, he filed another application which resulted in patent No. 1,320,900, issued to him November 4, 1919.
Heidbrink's suit, upon his two patents, is based upon the use and sale by McKesson of a device constructed in substantial accordance with McKesson's 1919 patent, with the addition of a device not shown therein but added by him to his commercial machine in 1916. McKesson answered this suit, making all the customary defenses and also setting up, as counterclaims against Heidbrink, the allegations that Heidbrink's commercial machine infringed several of the claims of each of McKesson's three patents. The trial court dismissed the bill and the counterclaim upon the theory that the machines of the two parties were of different types and that neither one infringed the patents of the other. Both parties appeal.
We consider first claims 1 and 2 of Heidbrink's earlier patent, issued upon his later application. For the purposes of this opinion only, we assume that Heidbrink was, as he claims, the first to construct any apparatus by which the predetermined proportions of the mixture would be automatically maintained in spite of an increase in volume of the flow of the mixture to the patient; that he showed operative means of accomplishing this result, both in his earlier and his later applications, whereby he was at liberty to take valid broad claims therefor in the earlier patent to issue; and that this result was exceedingly useful.
Having as elements in such a machine, the respective conduits leading to the mixing chamber, valves opening therefrom into the mixing chamber, and a discharge passage leading away from the mixing chamber, it is at once obvious that if it is desired to increase the outflow without changing the proportions, there are two methods by which it can be done-- though the successful application of either may require invention. One method is to increase the valve openings from the two conduits into the mixing chamber and increase them in proper relation to each other, while the pressure of the respective gases in the respective conduits remains unchanged. Because of the increased valve openings, more of the respective gases will get into the mixing chamber, but in the same proportion, and there will be a larger supply for the outflow. The other is to leave the valve openings into the mixing chamber unchanged, but to increase in proper relative proportion the gas pressure in the respective conduits. By this method, also, more gas, but in the same proportions, will come into the mixing chamber and be ready for the outflow. For simplicity it seems best to assume, as both parties have, that the gas pressures in the two conduits should always equal each other; otherwise the problem of proportioning by valve openings is very complicated. It is not impossible that still a third method may be devised, which would be a combination of the other two, and which would change in unequal proportions both the valve openings and the gas pressures back thereof; but we are not advised that this has been done, and it perhaps presents...
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