McDaniel v. Friedman
| Decision Date | 29 July 1938 |
| Docket Number | No. 6353.,6353. |
| Parties | McDANIEL v. FRIEDMAN. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Russell Wiles, Marcus A. Hirschl, Charles J. Merriam, William B. Graham, and George A. Chritton, all of Chicago, Ill. (Chritton, Wiles, Davies, Hirschl & Dawson, of Chicago, Ill., of counsel), for appellant.
Albert F. Mecklenburger, of Chicago, Ill., for appellee.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
Appellee was charged with infringement of United States Patent to appellant, No. 2,002,245. It was issued May 21, 1935, upon an application filed November 10, 1932. The bill also charged appellee with infringement of a copyright on appellant's book, "A New Technique and Instrumentation for the Removal of Impacted Teeth." The date of publication was September 27, 1933, and the affidavit upon which the entry of claim was registered was received January 15, 1934. The substance of this book was also published in "Dental Cosmos" on July 26, 1933, and a claim for copyright upon it was likewise registered in August 1933. The defenses were invalidity and non-infringement. The court made special findings of fact, and concluded that the copyright and all of the patent claims were invalid and not infringed. From the decree, which followed the conclusions, this appeal is prosecuted.
The invention relates to an instrument for use in removing an impacted third molar tooth. Prior to this disclosure it is said that it was customary in removing such a tooth to cut away that part of the jawbone growing above the tooth by means of a chisellike instrument adapted to cut downwardly through the jawbone by pushing downwardly on the instrument with hand pressure, or by striking the instrument with a mallet, or by drilling. This was objectionable in that the instrument had to cut first through the hard outside portion of the bone before it reached its softer or inside portion, thus necessitating a much more difficult operation, causing considerable trauma, shock to the nervous system, and much pain to the patient.
It is claimed that the present invention overcame these difficulties with a tool provided with a lateral cutting edge, shaped with a pointed end, a rearwardly increasing cross-section, and a rounded back, so that its pointed end may be inserted between the impacted tooth and the jawbone. Thus, by a rotating or rocking movement of the tool and a slight forward pressure, it may be manipulated so that the cutting edge operates for cutting the bone back of the third molar, or cutting away the hard bony structure overlapping the impacted tooth, or cutting the dense bony structure in the retra-molar triangle. It is said that this instrument is not an elevator for prying loose a tooth or a portion of it, but is a bone-cutting tool which embodies a new technique in that it cuts from below with a rotating and undermining cut, starting in the soft bony structure which underlies the harder bony structure in the retra-molar triangle. It is further stated that there is always a point of entry back of the second molar where the soft bony structure can be reached and cut away by the insertion and operation of the tool, and when the harder portion of the bone is reached in the upward cutting, it may be cut away with much greater facility and less pain to the patient than with the old tools known to the art.
The first six claims, of which number one is typical,1 are instrument claims. They are limited in respect to the blade by the following characteristics: (1) A pointed end; (2) a thickened curved or rounded rear edge; (3) a transversely convex bottom face; (4) a transversely concave top face; (5) top and bottom faces meeting on one side to form a thin cutting edge; (6) the axis of the cutting edge lies at an angle to the axis of the thickened rounded rear edge.
The last four claims are method claims, of which number seven is typical,2 and purport to state a method "of preparing an impacted tooth for extraction."
The District Court held the instrument claims invalid over the following prior art: The boy scout knife, the Le Cluse elevator, and the instruments of Doctors Feldman, Winter, Cook and Parker. It held that while the boy scout knife, with its thickened curved rear edge, was not a dental instrument, it was a reamer or corer, and that it was not invention to employ its equivalent, both in principle and construction, as a dental instrument for coring or reaming bone.
The LeCluse elevator has a blade with a sharp point, a convex bottom face, and a flat top face, meeting to form two longitudinal curved edges. The Winter instrument, which has many variations, is a modification of LeCluse, having a concave top face which meets the convex bottom face at a more acute angle to form sharper edges. The Cook instrument has a sharp, pointed end, a convex bottom face, and a concave top face, which faces meet to form two sharp cutting edges. The Parker instrument, also, is characterized by a convex bottom face and a concave top face which meet to form two cutting edges adjacent to the point, and two longitudinal edges. The cutting edges near the point have bevelled lower faces. The longitudinal cutting edges may be sharpened, and were kept sharp on those used by Dr. Parker as early as 1925.
The instruments of Feldman, Winter, Cook and Parker were designed and used for the removal of bone over impacted teeth. All of the elements of the instrument claims are old in the dental art, except the limitation found in all those claims to a longitudinally disposed thickened, rounded rear edge. This limitation is well illustrated by cross sections of the instruments involved. Those of Winter, Cook and Parker, as well as those of appellee, disclose the shape of a crescent, while those transversely through the blade of the patent show one sharp edge and an opposite rounded edge with a substantial thickness, varying in the different drawings, none of which have the appearance of a crescent.
Since 1924 appellee has manufactured and sold what are known as Feldman elevators, 64 R and 64 L. They were designed by Dr. Feldman in 1923, and were a modification of the LeCluse elevators. This modification consisted in hollowing the upper surface, sharpening the edges, and twisting the concavity into a longitudinal spiral. This instrument of Feldman was the only instrument ever manufactured by appellee which bore the stamp 64 R or 64 L, the letters signifying right and left. These were sold to the public in and since 1929, and have been used since that time...
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