the ultimate ,profit made by tile defendants is tilE! measure of their aCCouhtability/' .', .. " "
""'1'his deCision was the proper rule of profits inthi!,! case, tl,fter au argument()f thequestion,and its conclusions are not now open forrEiviewon mypart. If any adv;.mtage isfound, the amount of profit should be esthu,ated by .the master i,n accordance with the rule stated in the opinion of the circuit judge. , " The 'defendants offered testimony, which was admitted, respecting the comparative advantages in point of weaving capacity of divers English looms with wire motions, which were patented in England at different dates, but were never patented in this country. The complainant and the defendants differ upon questions of whether those patented devices, or any of them, or which of' them, were free and open to be used, and also differ as to the time when a comparison is permitted to be made; the complainant, for example, contending that a device must be free and open at the date of the complainant's patent; and the defendants contending that, if it, is free and open at or during the time of the infringement, then from and after the time when it becomes free it is a proper subject of comparison. Inasmuch as the master has found nothing in regard to these devices, and is not herein directed to make a new finding respecting them, a decision of these questions is unnecessary. The report is recommitted to the master, to make a further report in conformity with the views herein expressed.
July 26, 1889.)
(Oircuit Oourt, D. Ma8sachusetts.
PATENTS FOR INVENTIONS-INFRINGEMENT-DAMAGES.
On a reference to a master to report the amount of damages for which the defendant should be charged for infringement of plaintiff's patent. it appeared that plaintiff received $200 as royalty for each machine manufactured by a licensee, and that plaintiff made a profit of like amount on machines made by himself, and that defendant was a close competitor of plaintiff in the market. Held, that a charge of $200 for each machine manufactured by defendant was not excessive.
The facts that plaintiff;s machines emb"aced other patents owned by him besides the one infringed by defendant, and that such other patents were also included, in the license, furnisQ, no grounds for altering the master's findi.n g. where he also finds. that the efficiency and salabllity of the in1. inging machine depended upon the plaintiff's patent.
EQUIT;c-BILL OF REVIEW-:TIME OF FILING.
A bill of review for errors on the face of the decree must be filed within two yeats from the data of the final decree, sought to be reviewed.
In On'exceptionsto master's report, and on bill of review and answer.' For hearing on the merits,see 24' Fed. Rep. 600. T. W. Clarke, for complainant.
M'DONALD V. WHITNEY.
J. H. Millett, for defendants.
COLT, J. The only question arising under the exceptions of the defendant Joel Whitney to the master's report upon which I have any doubt relates to the amount of damages with which this defendant has been charged. The master charges him with $200 for each infringing machine made and sold by him. This finding is based upon the fact that one Clement paid McDonald a royalty of $200 on each machine which Clement manufactured; and further, that a profit of like amount was made by McDonald himself on the machines sold by him. It also appears that the complainant and this defendant were close competitors in the market. Under these circumstances, I do not think the master's findings excessive. It is urged, however, that the McDonald machine em braced other patents of McDonald besides the one which the defendant infringed, and that such other patents were also included in the license given to Clement. The master finds, however, that the efficiency and salability of t.he infringing machine d.epended upon the McDonald patent, which is in controversy in this snit, and which this court held this (lefendant infringed. While upon the evidence, as reported by the master, I am not entirely clear on this question, yet, on careful consideration, I can soe no sufficientreason for changing the master's finding. The exceptions to the rpaster's report are, therefore, overruled. The complainant has filed It bill in the nature of a bill of review against the defendant Arthur E. Whitney, .and a hearing was had upon this bill and the answer thereto. The position taken by this defendant is that, the error being apparent on the face of the decree, the bill should have been filed within two years from the date of the final decree sought to be reviewed. The final decree, dismissing the bill as to Arthur E. Whitney, was entered August 4, 1885, and the petition for leave to file a bill of review was dated more than two years thereafter, namely, September 24,1887. From analogy to the time within which by law all appeal may be taken from the circuit court to the supreme court, the supreme court have established the same limitation respecting bills of review, whenever the ground of the bill is error on the face of the decree. 'l'hornas v. Harvie's Heirs, 10 Wheat. 146; Whiting v. Bank, 13 Pet. 6; Ruker v. Powell, 100 U. S. 104; Clark v. Killian, 103 U. S. 766; Ensminger v. Powers, 108 U. S. 292, 2 Sup. Ct. Rep. 643. The decree being final as against the defendant Arthur E. Whitney, and the bi] of review not having been brought within two year;;, this bill must be dismissed. Master's report confirmed, and bill of review dismissed.
v. KXAPP et al. (No. (No. 538.)
July 26, 1889.)
Co. (No. 316.)
MORSS V. KNAPP.
(Circuit Court,' D. Connecticut. 1.
PATENTS FOR INVENTIONS-INFRINGEMENT-DAMAGES-PROFITS.
Defendants sold the complainant's patented expanding dress-form, to which defendants attached an improved device for operating it. Complainant's patented device gave to the infringing form its value as a marketable artiele. Held. that if any distinct part of the profit derived by defendants froID the infringing sales was due to their improvement in the operating device, the burden was on them to show it.
SAME-Loss OF SAI,ES.
The master properly refused to ailow eomplainant, in addition to the profits which he would have made upon the number of forms which he was deprived from selling by defendants' infringing sales, the profits made by defendants upon the number of forms sold by them in excess thereof. The proper rule is to allow only proved damages. Where it is manifest that during the period covered by the litigation all the testimony of importance was discovered and presented, it is proper for the master to refuse to open the accounting to receive further evidence that an expanding device not included in complainant's patent, but accomplishing the same results, was free to be used, and to receive in evidence a patent issued to one of the defendants before the accounting commenced. While complainant is entitled to increased damages, under Rev. St. U. S. 4919, 4921, giving the court discretionary power to increase the damages. for infringing sales made by defendants in willfnl violation of a decree enjoining them from so doing, he is not entitled to such damages merely on account of defendants' conduct in pushing the infringing articles upon complainant's customers, and endeavoring to deprive him of his former trade.
4. SAME-INCREASED DAMAGES.
At Law and in Equity. On exceptions to master's repurt. The facts are sutliciently stated in the opinion. Rev St. U. S. § 4919, provides that damages for infringement of a patent may be recovered by an action on the case, and that on a verdict for plaintiff" the court may judgment thereon for any sum above the amount found by the verdi<;t as the actual damages sUi:itained, according to the circumstances of the case, not exceeding three times the amount of such verdiet," etc. Section 4921 provides that in suits in equity the court may assess the damages caused by the infringement, and that" the court shall have the same power to increase such damages, in its discretion, llS is given to illcrease the damages found by verdicts in actions in the nature of act.ions of trespass on the case." Payson E. Tucker and Charles F. Perkins, for complainant. John K. Beach, for defendants.
SHIPMAN, J. These fire exceptions to the committee's and master's report in two actions at law and one suit in equity, whi<.:h were based upon the infringement of letters patent No. 233,240, dated October 12, 1880, to John Hall, for an adjustable dress-form. A description of the invention and the claim which was infringed are given in JtJorss v. Knapp, 37 Fed. Rep. 351. By agreem811t of the parties the accounting upon the