37 F. 92 | U.S. Circuit Court for the District of Eastern Missouri | 1888
This is a bill to restrain the infringement of letters pat* ent No. 224,991, granted to Alexander W. Brinkerhoff under date of March 2, 1880, for an improvement in “rectal, specula.” The patentee, in his specification, thus describes his invention:
“My speculum is made of metal, and plated in tlie usual manner, to secure a bright interior and smooth surface. In shape it is conical, and has one side slotted through its entire length of chamber. Into such slot is closely fitted a movable slide, having upon its rear end a handle for actuating it. On the side of the tube opposite the slide is another handle, by which to hold the tube when in use. Around tlie large end of the tube is a flange or lip, * * * and in the forward end of the chamber is an incline, made necessary in specula having closed ends, * * * to prevent the impaction of pile tumors, enlarged glands, or surplus membrane in the end of the chamber, and thereby enable the operator to withdraw tho instrument with safety and ease.”
Of the nature of his invention the patentee says:
“My invention consists in the use of a slide extending through the length of one side of the tube, and an incline inside of the forward or small end of the chamber, extending from the bottom of the chamber upward and forward to the under side of the slide when in place, to prevent injury to the membrane while withdrawing the instrument,” etc.
The claims made in the specification are as follows:
“(1) A slide in the side of a speculum, extending through its whole length, and used substantially as herein described. (2) The incline in the front end of the chamber, in combination with the tube, slot, and slide, substantially as and for the purposes herein set forth. (3) In cylindrical tubular specula having a slotted side aud closed end to prevent the entrance of faces, the incline in the front end of the chamber, extending upward from the bottom and forward to underside of slide, substantially as described, and for the purposes herein set forth.”
1. It is clear that the first claim of this patent covering “a slide in the side of a speculum extending through its whole length,” cannot be sustained. Indeed, it is not seriously contended by complainant’s counsel that the device covered by that claim is novel. I shall not go into the details of the evidence, therefore, on this branch of the case, but will content myself with the general statement that the testimony of Dr. Warren B. Outen, Dr. Charles Bernays, and Dr. Charles E. MioheJ, as well as the testimony of William Grady and Herman Speckler, satisfies me that rectal speoulums closed at one end, having a slot in the side extending the full length of the chamber, and fitted with a slide, had been used by the medical fraternity in this country, before the date of the alleged invention. While it is true that defendant has not produced any of the spec
2. The third claim of the patent is a claim for the “incline” in cylindrical tubular specula having a slotted side and closed end. The particular device attempted to be covered by this claim was anticipated, in my opinion, by a rectal speculum produced by Dr. Mudd, and shown to the satisfaction of the court to have been purchased at an instrument store, and to have been in use in this country before the date of complainant’s invention. The instrument in question is tubular. It is eonical in form, has a slotted side, a closed end, and, what is, of more importance, an incline at the closed end, extending from the bottom of the chamber upward and forward to the end of the slot. It is true that the angle made by the incline with the axis of the tube in the latter instrument approaches more nearly to a right angle than the incline in complainant's speculum, nevertheless there is a pronounced “incline;” and moreover, Dr. Mudd testifies that one purpose of the “incline” is to protect the mucous membrane from injury when the speculum is withdrawn, it should be further observed that complainant’s specification does not make the angle at which the incline is set in his speculum an essential feature of the device. As described in his specification, the utility of the incline consists in preventing the “impaction of pile tumors,” etc., and in enabling the operator to withdraw the instrument without injury to the membranes. This is precisely the function of the incline in the speculum produced by Dr. Mudd, and apparently it was set at an angle which effectually accomplished that purpose. At all events, no complaint appears to have been made against that speculum on the ground that the incline failed to accomplish the purpose had in view. The Squire’s speculum also shows an incline in the forward or closed end, in all respects like that in complainant’s instrument; but the testimony in the case leaves it somewhat doubtful whether the “incline” in Squire’s speculum was placed therein shortly before or shortly after complainant claims to have invented it. For that reason the patent is not affected by the evidence offered by defendant in relation to the Squire’s instrument.
3. In view of what has been said it appears that* plaintiff’s right to relief depends on the second claim for the “incline, * * * in combination with the tube, slot, and slide.” This claim is attacked on two grounds: First, that the combination, as a whole, was anticipated by Dr. Hodgen when he caused an incline in the form of a mirror to be set permanently in the forward end of the old “Iieed Speculum,” about the year 1876; and, second, that the combination is devoid of invention and patentable novelty. I shall concede that the evidence as to what Dr. Hodgen caused to be done with the Reed speculum 12 or 13 years since is, under the circumstances, not of that certain and convincing character which ought to be required to overturn the claims of a duly-issued pat