Theprlncipal answer of the plaintiff to these patents is that the process of resweating the leaves is a very different processfrom that of curing green tobacco, or renovating it as by Huse'smethod, or treating stems by Payn's. Taking this to be so, the defendants resweat instead of curing the tobacco which they treat, and do not thereby infringe the process of this patent for curing tobacco. The sweat-house of the defendants does not" upon the evidence, appear to have .either the metal-lined floor for it, nor the upright of the orator's patent of 1880, or any cleats attached to the side-walls. If they a slatted floor, it is no more the slattell floor of the plaintiff's patent than the, grated platform of:Payn's. They heat the tobacco in boxes ina close room after it has been moistened. The Robinson patent of 1879 covers the boxes. They do not· appear to infringe anything left of the orator's patent after it is cutdown; as it must be by these prior patents. He appears to have had great. success in treating tobacco, buUt seems to be due more to h,is .skill I1nd ca:re in conducting the processes than to his'plltented"processes orappftrlttus;' " Let a decree be entered dismissing the bill of complaint, ,with costs··
ROEMER 11. SIMON
(Circuit Court, S. D. New Y01'k. May 17, 188'7.)
PATENTS FOR INVENTIONS- LOCXSTO TRAVELING BAGS-DAMAGES FOR
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·AdeCree was made restraining further infringement of apatentfor certain account of profits and The locks to ,traveling bags, .and plaintiff, in proof of his damages, showed that he personally made and sold the locks separately and with bags, and that his profit 'upon the locks was 91 cents per dozen, and that the defendants had sold a speClfic number of them, but did not show their profits. Held, that the facts did not furnish a sufficient basis for estimating the damages, and that nominal damages were therefore only recoverable. 2.
In proving damages for the infringement of a patent, which is merely an incident attached to an article in common use, it must. be shown that the profits claimed were due to the \latent itself; and could not have been made except in exercise of the patent rIght; and, in proving such damages, a plaintiff must show that he would have had an opportunity to make and sell tlie patented article which the defendants made and sold if they had not so made and sold it. .
In Equity. Arthur 1J.Briesen, for plaintiff.
J. E. Hindon Hyde, for defendants.
WHEELER,"J. A. decree for an injunction agll.inst .further infringement of the plaintiff's patent, and for an account of profits and damages, was before entered in this cause. 20 Fed. Rep. 197. It has now been heard on the plaintiff's exceptions to the master's report of nominal damages only. The patent is for a single feature of a lock for traveling bags.
The plaintiff has granted no licenses, but has himself mltde and sold the locks separately and with bags, intending to supply the wants of the trade for them. He showed to the master that his profit upon these locks was 91 cents per dozen, and that the defendants had made and sold, with bags, 38,265 of them; but made no further showing of their profits. The exceptions raised the question whether these facts furnish a sufficient basis for the estimation of damages beyond merely' nominal damages. " Two defects are apparent in the plaintiff's claim in this respect-one is that the case does not show profits are due to the patented feature of the locks, in whole, or in any definite part; the other is that these facts do not show that the plaintiff would have had an opportunity to make and sell these locks if the defendants had not made and sold them with their bags. The case shows that there are other kinds of locks for such bags,. 8Jld they are mere incidents to the bags for their more However it might be as to articlell wholly covered by a patent for which there was no, or no convenient, substitute, it, does not follow in a case like this that a purchaser oOhe pripcipal thing with a patented incident would go until he should find that particular kind of incident before purchasing. The form, material, or workmanship, of the bag itself may have been, and is quite likely to have been, as decisive with the purchaser as, and perhaps more so than, the lock. The plaintiff may have, and:prc;>bably has, 13uffereddamagcs from this infringement. He must show more than this, however, in order to recover them. He must,according to the cases, show What they are, or some basis for estimating them. Garretson v. Olark,l11 U. S. 120, 4S'U'p; Ct. 291; Black v; Thorne, 111 U. 8.122, 4 Sup. Ot. Rep. 326,;,Dobson.v. Hartford Carpet Co., 114 U. S. 439,5 Sup. Ct. Rep. '945j Dobson v.Dornan, 116 U. S.10, 6 Sup. Ct. Rep; 946·. Exceptlops' ov,rruled,report accepted and confirJlled.
:C0'It'LE f1. KREMENTZ
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"(Cirouit,OO'U7't, 8. D.Nelll.York. May 13,J887.)
Letters patent No. 202,412, dated April 16, 1878, to Shubael Cottle, for improvement in collar and sleeve buttons. contained two claims.-one for the making of such buttons by striking up the post from the back, forming them in Qne piece, thickening the post at the base for strength, and soldering the headwthe.post; the other for the button. whose tubl1larback and post are formed in one piece. and having the metalthickened at the base of the post. Held,. the first claim was patentable for novelty in of constrl1(}tion,. I:)'dt that the claim for the button itself was Dot.
P01\ bVENTIONS-PATJilNTABILITY-NOVELTy-COLLAR AND Sr,EBVE BU'l'TONS. . '" .... ",
InEquity. Bill for infringement of letters patent. W. H.L. Lee, for orator. Frederit;,H. Betts and, J. E. Hindon Hyde, for defendants.