.. ing the result. In this .viewthe claim is valid. Thert' is no sufficient .' evidence to justify anticipation, or want of vention.. The devise used' by the respondent is sUbstantially' identical with the complainant's, t6th,e e;t(lnt covered by this -claim. A decree . must therefore go against: him fqr an account. ,.
A$M,UB t1. FREEMAN. 1 SAMg t1. ALDEN.
(lJircuit (J01VI't, E. D. Ptn""1Iltoania.
PATJmT8:1'OR INVENTIONS-INFRINGEMENT-DAMAGES MEASURED BY LIcENSE
... BAME-WORTHLESS CLAIM.'
Where "it is reasonably plain that A claim is structural, and the master has reported it valueless, and tbe proofs seem to justify him in so doing, the nonuse of it by an infringer of another claim .embracing the whole invention will not compel the complainant to adduce evidence to show the value of the part taken.. WeatooU v. Rude, 19 Fed....Rep. 836; Thread 00. v. l'hread 00.,27 Fed, Rep. 865; Tondeur v. Stewart, 28 .Ired. Rep. 561,-cited and followed.
In Equity. Exception to master's report. Order for injunction and account, July 19, 1886. See 27 Fed. Rep. 684. Master reported nominal damages. Plaintiff excepted to report on account of ruling therein that a license fee of $1,000 per furnace had not been proved. B,akewell &- Kerr, for complainant· . Wayne Me Veagh and W. W. 13aldwin, for defendant.
BUTLER, J.' The report shows such intelligence and care that we feel besitation in disagreeing with the leamed master. We are unable, however, to accept his conchision in one important respect. To show the ej[tent of damage sustaiIled, the complainant undertook to prove the existence of a uniform license. fee. In this, the master thinks, he failed. , The rule requires.a uniform fee within given periods, such as indicates the market value of a license at the times specified. Itneed not be uniform throughout the life of the patent, and could 'not be. As the 'nopoly approaches its close, the value necessarily .diminishes, and the price of its use must be correspondingly less. Nor is it important that a larger or smaller sum: is demanded and paid under special
Esq., of the Philadelphia bar.
Ii. FREl!;M A:S'.
stances,-as where licenses result from the settlement of suits for, or controversies about, infringement.' Here, as iIi all extraordinary cases, other considerations than the value of the license enter. It is sufficient that the price is uniform when the circumstances are similar, and such as ordinarily exist w.hen thf'se contracts are marle. The proofs herc show that the license fee demanded and paid in the beginning was $150 per foot across the bashes, averaging about $1,500 per furnace; and later 'on $100 per foot, about $1,000 per furnace. After some years it was placed at $1,000 per furnace, regardless of size. This latter sum was thereafter adhered to uniformly, under ordinary circumstances; and many licenses were taken at that rate. It was never departed from except where licenses arose from the settlement of suits for, or controversies about, infringement; and in one or two instances where several licenses were granted together, towards the expiration o(the patent, and these as well as other unusual circumstances operated to induce and justify aieduction. When the master says no reason is given for this latter reduction, he must be understood aEl meaning no reason. The proofs show the reaeons above stated, and we think them sufficient to justify a reduction, and exclude these licenses from consideration. As respects the infringements here involved, two commenced in the summer of1878, and the third in 1881. These are the periods, therefore, to which inquiry must be directed, and we think the proofs show the existence at both times of a well-established and uniform fee of $1,000, demanded and paid under ordinary circumstances. The complainant must therefore have a decree for $3,000. Whether interest should be added has not been considered. The question was not presented on the argument, and is open to doubt. We tipd no substance in the objection that the device covered by claim 7 was 110t used by respondent. The claim infringed (the first) covered tbe entire invention.. The seventh is structural merely, covering'a met1:Jod of constructing the" slag discharge piece" so as' to regulate the cooling process embraced in the first. The master did not pass on this question. We may infer, however, from what is said, that he considered it immaterial... The general rule is that, where less than' the whole num ber of claims has been infringed, evidence must be adduced to show the value of the part taken. This is. inapplicable, however, where,as here,. the claim infripged embraces the whole invention,and the others are simply structural. We8tcottv. Rude, 19 Fed. Rep. 830; Thread Co. v. Thread Co., 27 Fed. n.ep. 865; Tondeur..v. Stewart, 28 Fed. Rep. 5.61- The respondent admits that the several claims between the first and seventh are of this character. We think it reasonably plain that the seventh .also is. Furthermore, the proofs show that the license fee paid was the value placed on. use ofthe invention, irrespective of the <,Ievice covered by the claim. .WhAe it is not shown thatthis d.evice was ever used, it is show!1.that generally it was not. It seems to nave been regarded as valueless, and for this reason was not used by .the respondent. The master reports that "it was admitted by their counsel in argument before the master that the respondents did not regard the of claim 7. as
being of any practical value, and that had they so regarded it they would have adopted it and practiced it." This view respecting the value of the seventh claim is of itself conclusive. It is said the master is mistaken regarding the imputed admission. However this maybe, he virtually reports the matter covered by the claim as valueless; and the proofs seem to justify this conclusion.
(Diatrict Court,S. D. New York. Aprill1,l888.)
, Tin was shipped from New York to Buffalo in an open boat, to custom, and, by reason of heavy rains, and some leaking of the boat,waR delivered damaged, for which damage this suit was brought. The evidence indic/l.ted.thatthere had been a complete misunderstanding between libelant and claimant as to the hatches of the boat, the libelant supposing they were to be used, the claimant supposing the libelant waived the use of them. Held, that , both were in fault for the damage; the claimant, as common carrier, being bound to carry the goods safely, and to know whatwRs improper to be carriedwithout hatches; and the libehtnt, whose employe loaded the boat, for not seeing to it that the latter had hatches. Both were also in fault for not dunnaging suCh a cargo in an open boat. Held, that libelant should recover half his damage.
OF GOODs-LIABILITY FOR