FISCHER tl. HAYES.
machine came into general use, have openly and publicly furnished to their customers duplicate parts of the machine for the purposes of repair. 'What effect, if allY, this may have upon the case at final hearing I do not decide; but I do not think, under these circumstances, the court should grant a preliminary injunction. The Amazeen patents are for improvements in skiving-machines. These machines are made up of various elements in combination. It cannot be denied that a good many of the working parts of the machine were replaced in the alleged infringing machine repaired by the defendants. Bearing in mind, however, the character of the Amazeen patents, I am not prepared to decide, upon the papers before me, whether, under the law governing this class of cases, the machine had so far lost its identity or had been so reconstructed that the defendants should be held as infringers. Manufacturing Co. v. Foundry Co., 34 Fed. Rep. 393, and cases cited. Without expressing any opinion upon the merits of the case, which will properly come up at final hearing, I am of opinion, for the reasons given, that the complainant is not entitled to a preliminary injunction. Injunction denied.
FISCHER V. HAYES.
(Oircuit Court, S. D. Neu) York. August 15, 1889.)
PATENTS FOR INVENTIONS-DAMAGES FOR INFRINGEMENT.
'Vhere a master reports that the profits of defendant derived from the infringement of plaintiff's patent cannot be computed from the evidence, nominal damages only can be assessed, though it is apparent that there werl profits.
In Equity. of patent.
Application for assessment of damages for infringement
Edmund Wetmore, for plaintiff. Livingston Gifford, for defendant.
'VHEELER, J. This cause has now been heard upon the supplemental report of the master as to profits of the defendant from infringement of the plaintiff's patent. The substance of the report, as it now stands, is that from all the evidence before the master the amount of such profits "cannot be computed or determined." Therefore, while that there were some profits is apparent from the report, no definite extent of them attributable to the infringement for which the defendant is chargeable appears. There is no foundation for a decree for the payment of anything beyond merely nominal damages. .F'i&cher v. Hayes, 22 Fed. Rep. 529; Garretson v. Olark, 111 U. S. 120,4 Hup. Ct. Rep. 291; Black v. Thome, 111 U. S. 122,4 Sup. Ct. Rep. 326; Dobson v. Oarpet Co., 114 U. S. 439,5 Sup. C1. Rep. 945. No exceptions are filed to the report, and the only question is as to what is a proper decree upon the facts stated.
Report accepted and confirmed, and decree thereupon ordered for the payment hy defendant to the orator of six cents profits as damages, with costs.
RUSSELl, V. HYDE.
(Circuit Court, D. Maine. August 16, 1889.) 1.
PATENTS FOR INVENTION-INJUNCTION.
Reissued letters patent No. 10,418, dated December4, 1883, issued to A. Russell and F'. Curtis for improvement in ships' pumps. claimed as the principal improvement a barrel whose length was less than its diameter, making it easily lined.. Defendant's pump had a barrel whose length was considerably in excess of its diameter. Held, that the absence of this marked feature throws so much doubt on the question of infringement that a preliminary injunction will not be granted. Neither will it be granted where another claim is for a bucket externally dome-shaped, that is, having the form of an inverted cup. where defendant's bucket is not dome-shaped, and differs in other particulars.
In Equity. Motion for injunction. C. C. Power8 and C. Hall, for complaimmt. W. L. Putnam and Livermore, Fish & Richard8on, for respondent.
COLT, J. This is a motion for a preliminary injunction. The defendant is charged with infringing claims 5, 10, 11, 12, 13, and 14 of reissued letters patent No. 10,418, dated December 4, 1883, issued to Albert Russell and Francis Curtis for improvements in ships' pumps. The patent has already been before this court. RU88ell v. Laughlin, 26 Fed. Rep. 699. The main ground of defense to the present motion is non-infringement. The Russell pump is constructed with a barrel whose length is less than its diameter, which makes the pump short and easily lined, and this is one of the principal improvements described in the putent. The specification says: "It is a part of said [invention] to produce a piston or bucket pump which is of good capacity, yet quite short, which is attained by making the barrel of large diameter in proportion to its length. This is It very desirable feature of the invention, since such a pump llJay be lined llJost successfully, as hereinafter set forth, and is particularly suitable for ships, where it is important that as much of the pump as possible be above deck, * * * and yet not of great height, for can venience in operation and keeping in order." In the last five claims of the patent, which the defendant is charged with infringing, one of the main elements is a piston pump, having a barrel whose length is not greater than the diameter thereof. Now the Hyde pump does not have this special feature, because the barrel is there found to have a length considerably in excess of its diameter. Without going into less important differences, the absence of this marked feature in the defendant's pump throws so much doubt on the question of infringement that I am satisfied no preliminary injunction should be