CALIFORNIA ARTIFICIAL STONE PAVING CO. V. FREEBORN.
CALIF'ORNIA ARTIFICIAL STONe PAVINCCO.·,v. FReEBORN. 1
(Circuit Court, D. California.
January 26, 1883.)
Cross-cutting the larger blocks of artificial stone pavements into smaller ones with a trowel during the processor formation, in the manner described in and Perine Cases, 7 i3awy. 190, [15. C. 8 FED. REP. 821,] is an infringement of the Schillinger patent.
lIlARKING JOINTS NOT
Rnnning the marker, described in J[olitor and Perine Cases, along the line of the surface between the old block and the new one formed against it, withant anything being interposed, or any cutting being done between the blocks during the process of formation, is not an infringement of SChillinger's patent.
In this case, after a line of blocks had been formed and become solidified, a new block, from 12 to 20 feet by 2 or 2! feet wide, was formed between scantlings and the block or blocks before formed, without interposing anything whatever between the new and the old blocks. The material in its plastic state having been tamped down and then a layer of finer material put on top, the whole was finished and the olocks divided up into smaller ones during the process of formation, by use of. a trowel, etc., in all respects, except as to the line between the old and new blocks, as is described in the Cases of Molitor and Perine, 7 Sawy. 190. 2 Nothing was interposed and no cutting was made in the joint between the old and the new blocks. But after the material had partially set, and the block had been finished and divided into smaller blocks, the marker described in Afolitor and Perine Cases. was run along the line between the old and new blocks on the surface. This is the only difference in making the pavement in this case and in those of and Perine. TVlzeaton d': Harpham, for plaintiff. C. Fl. Parker, for defendant. SAWYER, J. I have gone over this subject again as to the crosscutting into blocks with a trowel during tIle process of formation. I adhere to the position that I took in the Cases of Perine and Molitor, 7 Sawy.190. 3 There is in this case a mark on the Burfacealong the line of division between the newly-formed block and the one before formed. The forming of the block against the pavement is according to the specifications in the reissue subsequently disclaimed; but it is claimed that running the marker along the line between the old and new blocks on the surface, after forming the latter, is an infringement. I am not able to take that view. I have gone as far in that direction as I think the patent will justify. I think in that particular it is not an infringement. Counsel for complainant have made a point as to simply marking lines upon the surface of. the ,block with the marker employed.. There is one case it wus
C. 8 FED. HEP.
held that marking the surface with a fish-line is an infringement. It is insisted by complainant that marking off the blocks on the surface at the time of laying the pavement with a marker about one-sixteenth of an inch in depth is an infringement. I am unable to perceive that the mere running along the surface of that blunt and rounded marker one-sixteenth of an inch in depth, there being no cutting elsewhere, is making a joint. I fail to see that that is an infringement. 'rhe complainant is entitled to a decree against the defendant for the infringement by dividing the larger block into smaller ones by cross-cutting in the manner adopted and described in the Cases of Perine and supra, and a decree will be entered accordingly. But I am unable to see that running the marker along the line between the old and newly-formed blocks, on the surface only, is an infring,ement.
(Oirwit Oourt, E. D. "lfic'!igan.
Plaintiff was the ownerof a patented improvement in trunks, which consisted in covering the frame of the trunk with narrow stripS of wood, laid in close proximity to each other, all around its top and sides. Defendant infringed hy manufacturing and selling trunks containing the pateuted covering. fIeld, that plaintiff could not recover the net profits mad! by defendant in the manufacture and sale of the entire trunk, but was limited to such as wae properly attributable to his improvement.
A proper method of estimating: damages would be to take the profits made by the defendant upon one of these trunks, anll deduct from them the profits upon an ordinary trunk of similar size and general description. TllC dtiIerencc might be properly credited to plainWrs invention.
In Equity. On exceptions to master's report. This was a bill to recover damages for the infringement of plaintiff's patent, No. 72,988, for an improvement in trunks. The invention consisted "in covering the frame of the trunk with narrow strips of wood, laid in close proximity to each other all around its top ancl sides." Plaintiff obtained an interlocutory decree, with reference to a master to compute the damages. In his report the master allowed the plaintiff the entire net profits made by the defendant in the manufacture and sale of 3it dozen of trunks covered by the patent, amounting to $1,412.72. Exceptions were filed, principally upon the ground that plaintiff failed to separate the profits attributable to his patent from those arising from other parts of the trunk. Geo. H. Lothrop, for plaintiff. C. J. Hunt, for defendant. BROWN, J. There is no douht whatever of the general proposition that the patentee of an improvement is limited in Lis recovery to