CITE:  193 F.2d 58
CMON:  December 1951
PLAIN: Martin
DEFND: Wyeth, Inc., et al.
COURT: United States Court of Appeals Fourth Circuit
DATE:  December 5, 1951

HISTORY:
Action by Francis E. Martin, individually and Francis E. Martin, doing
business as Martin Laboratories, against Wyeth, Incorporated, and others,
for patent infringement, breach of confidential relations and wrongful
appropriation of plaintiff's invention before issuance of a patent, and
trade-mark infringement.

The United States District Court for the District of Maryland, at Baltimore,
W. Calvin Chesnut, J., 96 F.Supp. 689, rendered judgment for defendants
and plaintiffs appealed. The Court of Appeals, Per Curiam, held that Patent
No. 2,498,374, relating to bougies or suppositories for use in the treatment
of mastitis in cows and the method of application which consisted merely
in inserting the bougies in the teats of the cows, was invalid for lack
of invention.

Affirmed.

SUMMARY:
  Obvious ideas are not patentable.

JUDGE: PER CURIAM
Before PARKER, Chief Judge, and SOPER and DOBIE,  Circuit Judges.


DECISION:

This is an appeal from a judgment for defendant in an action brought to
recover damages for infringement of a patent and a trademark and for breach
of confidence in an alleged confidential relationship. The patent involved
is Patent No, 2,498,374 relating to bougies or suppositories for use in the
treatment of mastitis in cows and the method of application which consists
merely in inserting the bougies in the teats of the cows. The trademark of
plaintiff is "Mastics", the name under which the bougies of the patent are
sold, and it is alleged to be infringed by defendant's sale of bougies under
the name of "Penstix" to be used in the treatment of mastitis. The alleged
confidential relationship is based upon communications between plaintiff 
and officers of defendant relative to obtaining penicillin for use in the
manufacture of bougies. The facts are fully and correctly set forth in the
opinion of the District Judge and need not be repeated here.   We agree with
him, for reasons adequately set forth in his opinion, that the patent is void 
because it involves nothing more than the adoption of an old device to a
new and analogous use, that plaintiff's trademark has not been infringed
and that no actionable breach of a confidential relationship has been
established.

Plaintiff's idea of using the soluble bougie for the purpose of introducing 
medicaments into the udders of cows afflicted with mastitis was a new and
valuable idea; but it is elementary that ideas are not patentable. The
patent related to the bougies and the method of inserting them; but bougies
were old in the medical art and the method of using them for the treatment
of mastitis, since it was the mere application of an old object to a new
and analogous use, did not constitute patentable invention. Pennsylvania R.
Co. v. Locomotive Engine S. Truck Co., 110 U.S. 490, 494, 4 S.Ct. 220,
28 L.Ed. 222; Goldman v. Polan, 4 Cir., 93 F.2d 797, 799; Walker on Patents,
6th ed., vol. 1, p. 96 et seq.

Affirmed.

Martin v. Wyeth, Inc., D.C., 96 F.Supp. 689.