81 F. Supp. 1018 | Ct. Cl. | 1949
delivered the opinion of the court:
The plaintiff, a subject of Great Britain, sues for the alleged infringement by the Government of his United States patent No. 1,473,337, granted November 6, 1923, on an application filed August 15, 1919. The patent is for a breathing compound to be supplied to deep-sea divers as a substitute for ordinary air. The problem at which the invention was aimed was that nitrogen, which makes up 80 percent of ordinary air, is highly soluble in the liquids and tissues of the body, and particularly in the fatty tissues. Air must be supplied to the diver under pressure somewhat greater than the water pressure at the depth at which he is working. When the nitrogen of the air is supplied at such pressure, if the depth is great and the pressure correspondingly high, a large amount of the nitrogen is absorbed into the tissues of the diver’s body. When the diver ascends toward the surface of the water, the absorbed nitrogen reappears in his blood vessels, and is ultimately discharged through his lungs. If the ascent is made too rapidly, bubbles of nitrogen are formed in the blood vessels, which impair the circulation of the blood and other functions of the body, and cause such mal
The plaintiff’s alleged invention for which he received his patent was for an artificial breathing mixture in which some other gas would be substituted for the nitrogen content of the air. The two claims of the patent are as follows:
1. A respirable composition comprising oxygen gas, and a chemically inert rare gaseous diluent therefor the oxygen being in a proportional amount substantially proper for respiratory purposes.
2. A respirable compound for divers’ use comprising oxygen and helium as a gaseous diluent, the oxygen being in a proportional amount substantially proper for respiratory purposes.
The patent states as objects of the invention the obviation of harmful effects of the absorption of nitrogen, and the elimination of the dangers of the diver’s emergence from pressure, thus increasing the time during which he can work under pressure and reducing the time required for his ascent.
The patent further states that helium is selected as the best among a number of suitable diluents for the oxygen in the mixture, and that the compound would be one part oxygen to four parts helium. A second formula suggested is one part oxygen to four parts argon, and a third, one part oxygen to four parts hydrogen. However, it is cautioned that while hydrogen would not, like nitrogen, be absorbed by the tissues, it is highly explosive in combination with oxygen and its use would be dangerous.
The Government’s infringing act relied upon in the present phase of this case was its use of a breathing mixture of 25 percent oxygen and 75 percent helium for some of its diving operations in connection with the submarine Bqualus which sank May 23, 1939, in 240 feet of water in the vicinity of Portsmouth, New Hampshire, and was raised and finally docked on September 15,1939.
The Government contends that both of the claims of the plaintiff’s patent are invalid. It says that claim 1 is invalid because it is drawn to a class of compositions some members
Claim 2 of the patent described helium as the element to be substituted for nitrogen, the oxygen to be in “a proportional amount substantially proper for respiratory purposes.” In the general statement of the patent it is said that the mixture should contain one part oxygen and four parts helium. The
It is so ordered.
For decisions holding patent claims invalid because they covered classes of materials, some members of which classes were nonoperative, see Corona Cord Tire Co. v. Dovan Chemical Corp., 276 U. S. 358; Consolidated Electric Light Co. v. McKeesport Light Co. (the Incandescent Lamp case), 159 U. S. 465; Kalle & Co., et al., v. Multazo Co., Inc., et al., 31 Fed Supp. 109; 109 Fed. (2d) 321; American Chemical Paint Co. v. Firestone Steel Products Co., 27 Fed. Supp. 144, 117 Fed. (2d) 927.