Heidbrink v. McKesson, 3781

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation290 F. 665
Docket Number3781,3782.
PartiesHEIDBRINK et al. v. McKESSON.
Decision Date17 July 1923

290 F. 665

HEIDBRINK et al.
v.
McKESSON.

Nos. 3781, 3782.

United States Court of Appeals, Sixth Circuit.

July 17, 1923


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. [290 F. 666]

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.

DENISON, Circuit Judge.

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 [290 F. 667] 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...

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23 practice notes
  • General Electric Co. v. Jewel Incandescent Lamp Co., No. 5482.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • December 9, 1942
    ...C.C.P.A., Patents, 7344; George K. Hale Mfg. Co. v. Hafleigh & Co. et al., 3 Cir., 52 F.2d 714; Heidbrink et al. v. McKesson, 6 Cir., 290 F. 665; Walker on Patents, Deller's Edition, page 795, § 168, et If, as the plaintiff contends, the claims in suit are directed to an article of manu......
  • Moist Cold Refrigerator Co. v. Lou Johnson Co., No. 13811.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1955
    ...eight years after the original patent was issued without ever having tested the latter's validity in court. In Heidbrink v. McKesson, 290 F. 665, 668, decided by the Sixth Circuit, the original Heidbrink patent had been declared void and the claims held to be deliberately and skillfully dra......
  • Sid W. Richardson, Inc. v. Bryan, Civ. A. No. 1256.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 27, 1956
    ...Henry v. City of Los Angeles, 9 Cir., 255 F. 769, 778, Demco v. Doughnut Machine Corp., 4 Cir., 62 F.2d 23; Heidbrink v. McKesson, 6 Cir., 290 F. 665. 12 Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 257, 48 S.Ct. 474, 72 L.Ed. 868; Refrigeration Patents Corporation v. Stewart Wa......
  • Cleveland Punch & Shear Works Co. v. EW Bliss Co., No. 9748-9751.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 7, 1944
    ...899, 82 L.Ed. 1402; United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 63 S.Ct. 165, 87 L.Ed. 232; Heidbrink v. McKesson, 6 Cir., 290 F. 665. It is understood that Balcker improved upon Klocke by effecting further movement of the pressure pad after the forming operation. This was to......
  • Request a trial to view additional results
23 cases
  • General Electric Co. v. Jewel Incandescent Lamp Co., No. 5482.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • December 9, 1942
    ...C.C.P.A., Patents, 7344; George K. Hale Mfg. Co. v. Hafleigh & Co. et al., 3 Cir., 52 F.2d 714; Heidbrink et al. v. McKesson, 6 Cir., 290 F. 665; Walker on Patents, Deller's Edition, page 795, § 168, et If, as the plaintiff contends, the claims in suit are directed to an article of manu......
  • Moist Cold Refrigerator Co. v. Lou Johnson Co., No. 13811.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1955
    ...eight years after the original patent was issued without ever having tested the latter's validity in court. In Heidbrink v. McKesson, 290 F. 665, 668, decided by the Sixth Circuit, the original Heidbrink patent had been declared void and the claims held to be deliberately and skillfully dra......
  • Sid W. Richardson, Inc. v. Bryan, Civ. A. No. 1256.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 27, 1956
    ...Henry v. City of Los Angeles, 9 Cir., 255 F. 769, 778, Demco v. Doughnut Machine Corp., 4 Cir., 62 F.2d 23; Heidbrink v. McKesson, 6 Cir., 290 F. 665. 12 Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 257, 48 S.Ct. 474, 72 L.Ed. 868; Refrigeration Patents Corporation v. Stewart Wa......
  • Cleveland Punch & Shear Works Co. v. EW Bliss Co., No. 9748-9751.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 7, 1944
    ...899, 82 L.Ed. 1402; United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 63 S.Ct. 165, 87 L.Ed. 232; Heidbrink v. McKesson, 6 Cir., 290 F. 665. It is understood that Balcker improved upon Klocke by effecting further movement of the pressure pad after the forming operation. This was to......
  • Request a trial to view additional results

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