Sparling v. Marzall

109 F. Supp. 922, 96 U.S.P.Q. (BNA) 254, 1953 U.S. Dist. LEXIS 3271

• Court: District Court, District of Columbia
• Decided: January 14, 1953
• Docket: Civ. A. 1769-51
• Status: Published

Opinion

KEECH, District Judge.

This proceeding is an application for a patent on “a medicinal preparation for internal use by oral administration for the treatment of duodenal and stomach ulcers in which the essential remedial ingredients for the treatment stated consist of 'balsam of Peru in combination with lanolin.”

The healing property of balsam of Peru has been well known in the healing art for many years, as shown by its ordinary dictionary definition,¹ as well as by the descriptions given in the National Dispensatory (1896), page 320, and the U, S. Dispensatory, 23rd ed. (1943), page 188. Lanolin is well known as a base for ointments.² A combination of balsam of Peru with lanolin and other ingredients is disclosed in a formula for a scalp preparation in Hiss & Ebert, New Standard Formulary, 5th ed. (1920), at page 985 (Formula X). It is known to the medical profession that balsam of Peru and lanolin may be taken internally without deleterious effect.

The adaptation for internal use of a combination of balsam of Peru and lanolin, ingredients already known to be effective in ointments for external application, is a development which, in the opinion of the court, might be expected from those skilled in the healing aft, and does not exhibit that “flash of creative genius” essential to patentability.³

The application for patent will therefore he denied.

1 . “balsam of Peru. A reddish-brown sirupy balsam * * * used as a stomachic and expectorant, and in the treatment of ulcers, etc. * * Webster’s New International Dictionary, (1926 ed.)

2 . “lanolin ... a yellowish white unctuous mass . . . much used as a basis for ointments.” Id.

3 . Standard Oil Development Co. v. Marzall, 86 U.S.App.D.C. 210, 181 F.2d 280.