(Circuit Court, E. D. New York. April 2,1884.)
D. was proved to have infringed a patent of S. for making newel posts, by selling 101 newels, which embodied t.he design of S., at $7 each. It appeared that theJ' cost $5 each to make, and that a fair manufacturer's profit on each was 10 per cent. Held, that the profit of D. for the use of the patent of S. on such newels WIiS $1.50 apiece, or $151.50; that proof that D. sold other newels of a design not patented at the same price did not dispel the presumption that the amount realized by him above thu cost of manufacture and the manufacturer's profit was the profit realized by him from the adoption of the design of S. 2. !:lAME-HEV. ST. 4 4919. Held, furthf!l', that under section 4919 of the Revised. Statutes, as construed by the supreme court in Bird81Lll v. ljuul'tdge, 93 U. S. 64, 8. must be decreed to recover of D., in addItion to the $151.50, as much more, making the recovery $303, that sum Leing proved to be the damages of S.
PATENTS VO'\t INVENTIONS-INFRINGEMENT-MEASURE 01!' DAMAGES.
In Equity. Exceptions to master's report. Edwin II. Brown, (Arthur Murphy, of counsel,) for plaintiffs. N. H. Clement, for defendant. BENEDICT, J. This case comes before the court upon the master's report of tl1e plaintiffs' damages and the defendant's profits arising out of an infringement by the defendant of the plaintiffs' patent for a design for newel posts. rrhe first exception is well taken. The proof is that defendant sold 101 newel posts of the design covered by the plaintiffs' patent, instea'd of 119 as reported by the master. The second exception is not well taken. The proof is that 101 newels made and sold by the defendant embodied the design secured to the plaintiffs by their patent. The third exception is not well taken. The proof shows that the defendant made 101 newel posts similar to the plaintiffs' newel posts. The cost of making these posts is shown by a stipulation made between the patties to be $5 each. The testimony shows that lOper cent. is the fair manufacturer's profit on the struction of such an article. The defendant sold the newels so madE! by him for $7 each. His profit, therefore, for the use of the plaintiffs' design is $151.50. It is contended by the defendant that the proofs show that at the time he was selling newels of the plaintiffs' design he was also selling newels of other designs, not patented, from which sales he realized 'ts much as he did from the sales of the plaintiffs' newels, and therefore it is said no profit accrued to the defendant from the use of the plaintiffs' design. But the remainder of the price realized from the sale of newels of the plaintiffs' design, after deducting the cost of making the newels, and a fair profit for their manufacture, must be presumed to represent the profit realized by the defendant from his adoption of the plaintiffs' design, in the COll1 Reported
by R. D. and Wyllys Benedict, of the New York bar.
KIMBALL V. CUNNINGHAM.
struction of the newels sold by him. And this presumption is not dispelled by proving that the defendant realized the same profit from adopting, in the manufacture of the newels sold by him, a. different and unpatented design. The fact that a certain profit is realized from the adoption of the design of A does not show that no profit is realized from the adoption of the design of B. The fourth exception raises the question whether the plaintiffs can, by virtue of section 4919, Rev. St., redover damages resulting from the defendant's infringement of their patent in addition to the profits realized by the defendant. Doubts appear to have existed in regard to the meaning of the provision in section 4919, but I understand the sur-reme court in Bird.sall v. Coolidge, 93 U. S. 64, to hold the effeot of the statute to be this: that when it appears, in a case in equIty, that the defendant's profits, derived from the use of the plaintiff's invention, do not amount to so much as the plaintiff's damages arising from the infringement, the court may add to the amount of the defendant's profits a sum sufficient to make the amount awarded by the decree equal to the plaintiff's damages. So the decision referred to is understood in Child v. Bo.ston eX Fair Haven Iron Works, 19 FED. REP. 258. Under this construction of the statute the plaintiffs, upon the proofs in this case, may have added to the defendants' profits the sum of $151.50, making the recovery $303, which is the amount of the plaintiffs' damages as shown by the proofs.
((Jircuit Oourt, E. D. N6UJ York
PATENTBFOR INVEN'fION8--PATENT CLOTHS, ETc.-INFRINGEMENT.
149,B96-TAG OR TICKET FOR TICKETING
K. was the owner of a patent for a certain form of tag or ticket used for ticketing cloths, etc. The claim of the patent was for .. a size or quality mark or ticket composed of two layers of paper, between which is secured tbe head or bridge of the fastening springs, which extend through the bottom layer, and are adapted to fasten the ticket to a fabric." K., having brought a suit against C. to restrain the infringement of the patent" applied for an injunction. It appeared that the defendant made a ticket. having a staple secured to ,a tag by an eyelet, the lips of which clamped the1lridge or head of the staple to, the underside of the tag. Held: That what K. 's patent purported to secure was the method of attaching the fastening spring or staple to the tag; that the defendant's ticket did not infringe on that method, and the motion for an injunction must be denied..
In Equity. Motion for preliminary injunction. Townsend, Dyett eX Einstein, for plaintiff. Wm. C. Witter, for defendant.
tReported by R. D. & Wyllys Benedict, of the New York bar.