OpenJurist

FAULKS V. KA14P.

675

FAULKS

and others v.

KA14P

and another.-

(Oircuit Oourt, 8. D. New York. February 13, 1882.)
1.

LETTERS PATENT-BALING SHORT-CUT HAy-BASIS OF PROFITS.

Where the only claim of the patent infringed was for" pressing and binding short-cut hay into bales," short-cut hay being known before, the only profits to be allowed for such infringement are the extra profit due to selling such hay when baled, over selling it when loose or prepared for market in other known ways.
2.

SAME-SAllE-BuRDEN OF PROOF.

It is the duty of the plaintiffs to give evidence separating such profits; otherwise only nominal profits can be allowed.

'In Equity. On exceptions to master's report. e. N. Judson, for plaintiffs. J. C. Clayton, for defendants. BLATCHFORD, C. J. The first claim of the patent, the only one infringed, is for pressing and binding short-cut hay into bales. Shortcut hay was known before. Pressing and binding it into bales made no change in its properties or quantity, but enabled it to be more can· veniently handled for sale as merchandise, and for transportation. The profits to which the plaintiffs are entitled do not include any profits of converting long hay into short-cut hay. They include only the profits of pressing and binding into bales short-cut hay; hay after it is cut short. They do not include, either, any profits on the hay as hay, except such profits as resulted from the fact that, as short-cut hay, it was pressed and bound in bales, such last-named profits being the extra profits due to selling the short-cut hay pressed and bound in bales, over selling it as loose, short-cut hay, or as shortcut hay manipulated for market in some prior known way. The master appears to have reported profits on cutting the hay, and also other profits on the hay as hay than those above specined as allowable. The third exception must, therefore, be allowed. It was the duty of the plaintiffs to give evidence separating the profits above defined. In the absence of such proof only nominal profits can be allowed. It is also ma,nifest that the master, in fixing four dollars a ton as profit in respect of the matter covered by the second exception, included profits on cutting hay, and the other improper profits above mentioned. The second exception is allowed. For the same reasons the fourth exception is allowed, and also the first. The report is set aside, and the
-Reported by B. Nelson White, Esq., of the New York bar.

676

FEDERAL REPORTER.

case is referred back to the master, with liberty to the plaintiffs to apply to him for leave, to be granted or refused in his discretion, to give further proofs as to profits, and for a further report from him, based on the principles above laid down.

WERNER

v.

REINHARDT

and another.

September 29, 1881.)

(Oircuit Oourt, S. D. N(J'IJ) York. 1.

DESIGN IN TRIMMING-INFRINGEMENT-INJUNCTION.

A design for trimming, produced by embossing on fluting machinery, con. fers the exclusive right to impress that appearance, and an imitation of the design will be restrained by injunction.

In Equity. Arthur v. Briesen, for orator. Jacob L. Hanes, for defendants. WHEELER, D. J. This suit is brought for relief 'against infringe. ment of design letters patent No. 11,186, granted to the orator on application made March 19, 1879, for a design for trimming, pro. duced by embossing on fluting machinery, dated May 6, 1879. The orator makes and sells trimming according to his patented design, as he claims it to be, and the defendants admit having made the same thing; but they set up in defence that the patent does not cover that design; that the orator was not the original and first producer of the design which it does cover; and that so much of the design as they have made use of had been in public use and on sale, with the consent and allowance of the orator, for more than two years prior to his application for the patent. The impression created at the hearing was that the defendants had not, in view of all the evidence on both sides, sustained either of the last two defences by the requisite measure of proof. A careful reo view of all the evidence confirms that impression. The specification and drawings of the patent, taken all together, show a row of embossed, smooth, oblong, and half-cylindrical projections between and parallel with two rows of ordinary fluting, which are the prominent and original features of the design, and are what the orator's trimming, made under the patent, show. This design is what he invented. It proved attractive, and his patent conferred upon him the exclusive