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AMP INCORPORATED v. GARDNER

No. 258, Docket 31829.

389 F.2d 825 (1968)

AMP INCORPORATED, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, and James L. Goddard, Commissioner of Food and Drugs, Defendants-Appellees.

United States Court of Appeals Second Circuit.

Decided February 13, 1968.

Attorney(s) appearing for the Case

Jay L. Seitchik, Harrisburg, Pa. (Marshall M. Holcombe, Harrisburg, Pa., William C. Conner, of Curtis, Morris & Safford, New York City, on the brief), for plaintiff-appellant.

James G. Greilsheimer, Asst. U. S. Atty., So. District of New York (Robert M. Morgenthau, U. S. Atty., and Martin Paul Solomon, Asst. U. S. Atty., Paul Hyman, Attorney, Food and Drug Administration, on the brief), for defendants-appellees.

Before SMITH, KAUFMAN, and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This appeal from a summary judgment presents the question whether two products manufactured by appellant, AMP Incorporated, are "new drugs" within the meaning of the Federal Food, Drug, and Cosmetic Act ("the Act"), 52 Stat. 1040 (1938), as amended, 21 U.S.C. §§ 301-392.

Both of the products are intended to be used in a new method of tying off, or ligating, severed blood vessels...

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