dation that, in the absence of an adjudication in its favor, a preliminary injunction should not issue. The motion is denied.
(Oircuit Oourt, D. Ma8sachusetts.
November 3, 1887.)
PATENTS FOR lNvENTIONS-INFRINGEMENT'"-DAMAGES AND PROFITS.
Under a decree directing the master to take an account of the profits which the defendant had received from the infringement of the patented invention, and to report the damages, if any, in addition to the profits, the masterfound that the complainant's profits were in excess of his damages, and reported the amount of the profits realized by the defendant attributable to the patented invention, Held, that an allowance to the defendant of 10 per cent. of the entire profits, liS manufacturer's profits, was reasonable, and that the complainant was not entitled to any damages in addition to profits. On an accounting for infringement, it appeared that, prior to a certain date, the defendant had had an exclusive license to manufacture and sell the patented article, paying a license fee of about 10 per cent. on the proceeds realized, and that subsequently the complainant had acquired a similar license, which continued in force to the bringing of the suit, paying a royalty of three cents per article on all sales. Held, that the evidence failed to show such an established license fee as would constitute a proper measure of damages. Whether or not the statement made on the accounting of the costs in the manufacture and sale of the patented article, and patented improvements thereon, presented a reliable basis for the calculation of profits made, and whether or not the master should not, therefore, have reported the licen,se fee alone, as the proper amount of the complainant's recovery, are questions of fact for the master.
Upon the hearing of exce]1tions to a master's report of profits, the defendant requested the court to direct the master to report the evidence necessary to a clear understanding of the exceptions. It appeared that the evidence was taken ,orally before the master, who only took notes, and that no request was made at the time tbat the testimony should be reported to the court. The master stated that it would be impossible to convey to the court a correct idea of all the testimony upon the accounting. Held, that the motion should be refused.
In Equity. On exceptions to master's report. See 26 Fed. D. a. Linscott, for complainants. I. D. Van for defendant.
COLT, J. This case now comes before the court on exceptirJDs to the master's report. The master was directed to take an account of the prof. its which the defendant had received from the infringement of the pat· ented invention,and to report the damages, if any, in addition to the profits, which the complainants have sustained since August 16, 1880. 'fhe master finds that the defendant has made and sold 4,092 pairs of the infringing pedal feet, and that the profits realized by the defendant
HAM:M:ACHER V. WILSON.
attributable to the patented invention were $632.36. He does not con entitled to the entire profits made by the defendsider the ant, but only such profits as may fairly be attributed to the patented invention, and he therefore allows the defendant 10 per cent. of the entire profits. The master also finds that the complainants' profits are in excess of. their damages; and that, consequently. they are not entitled to recover any damages in addition to profits. It is olear that the complainants were not entitled to an allowance of the entire profits realized from the sales of the pedal feet, but only to such as might be attributable to the patented improvement. In making an allowance of 10 percent. to the defendant, the master was right, end the complainants' exception to this finding should be overruled. The defendant has also filed numerous exceptions. The most important exception raises the question whether the master did not err in finding some other measure of profits and damages than the license fee. Previous to August 16,1880, the defendant had an exclusive license to manufacture and sell the patented pedal feet, paying a license fee of about 10 per cent. on the proceeds realized. Subsequently the complainants, Hamti1acher & Co., acquired an exclusive license, paying a royalty of three cents per pair on all sales. It may be doubted whether this evidence Shows such an established license fee as would constitute a proper measure of damages. But even ifsuch license fee were shown, the master was directed to· find profits as well as damages, and he finds the profits realized equal a certain sum, while he makes no allowance for damages based upon the license fee, because the profits are in excess of the damages. I can discover no error in these findings. The defendant also· excepts to the amount of profits found by the nlaster, on the ground that the statement of costs in the manufacture and sale of the pedal foot, and patented improvement thereon, presented no reliable basis for a calculation of profits, and that the master should have reported the license fee alone as the proper amount for the complainants to recover. This was a question of fact, for the master to decide, and I see no reason to disturb it upon the record before me. The defendant also excepts to the mode in which the master calculated . the pro.fits on the patented improvement, and he contends that the amount allowed was excessive, and he also excepts to certain findings of' fact. Upon careful examination, I am satisfied that the master committed no error in these respects. The other exceptions are immaterial. The evidence was taken· orally before the master, who only took notes, and no request was made at the time that it should be reported to the court. The master says it would ,be impossible to convey to the court a correct idea of all the evidence upon this accounting. Under these circumstances, I do not see how the court can properly comply with the request of the defendant to direct the master to report the evidence necessary to a clear understanding of the exceptions. Exceptions overruled.
798 .. :
STEAMNAV. CO. v. CORNlllLL STEAM-BoAT CO}
(District Court, S. D; NeW York. November 18; 1887.)
TOWAGE-BREAKING OF Tow...,.:DAMAGE TO TlIIJ1DPARTy-LIABIJ.,ITY. OF TUG.
Respondent's tug was about to b()ats. ,aC'i0SS the North river, but had assumed nOfart of the work of securing the boats to be towed. , Unknown to the master 0 the tug. a third boat, thecanal cb6at W., was designed to be included in the tow,and WAS partly attached ,to the towby her own men; but before bO,th necessary lii;1es were made fast, word was passed from the tow to go ahead,and on starting forwar<l the lines of the W. gave way. and she drifted upon and injured libelant's steamer. On suit brought against the tug for the damage, held, that she was not liable.
Action for. Damage callsed by the breaking of the canal-boat William Walker from her tow, injuring libelant's vessel. OWffn Gray,for libelant. Benedict, TaJt Bffnedict, for respondent. BROWN, J. I am satisfied that the immediate cause of the breaking adrift of the canal-boat William Walker, and of t.he ensuing collision, was that the signal to start was passed to the re,spondent's tug before both of the lines of the lighter were made fast. One small line had been fastened, the other not. Ina fe,wmoments ,the small line parted, and the boat'drifted down against the libelan,t's The respondent's tug in this, cal'e did not assume any part of the duty of arranging or securing the three boats to be towed. " Her capw,in, I think, plainly understood that only two boats, were, to be taken, n,ot including the Walker. The work of securing the lighter was undertaken ,entirely by her own men, and it was they who determined the time to start, and to pass the signal, "all right," to the tug. The blame oOhe faulty start must rest on the lighter, and not ,Qn the tug. The Martino Oilento, 22 Fed. Rep. 859; The Jack Jewett, 23 Fed. Rep. 927. I find nothing in The Quickstep, 9 Wall. 665, 671, tathe contrary. AsI must hold that the captain of the tug did not know that the Walker was attached, or designed to be attached, to the other two boats that he agreed to take in tow, I cannot find any blame resting upon the tug, and th,erefore must dismiss the libel, with costs.
Reported by Edward G. Benedict, Esq., of the New York bar.