theitsurfdce 1 bt' their color, their uS,es,
their to uses,-all oftheseare'elemeritil
eacll of tqese elements is not to ' SomElmay be'very som'e whollyunrmport8nt. ' 'It 'will be for you 'to judge as th',die'relative importance Of the several elementswhich I,have,suggested t6you.; its proper value;' to then determine, by a of aU, of'them,whethedhe godds are or are not,in the dtliiharylise or the Engljsh language,"of similar description II to the sbmdard. the rule: [The court next instructed 'the jury as! the various introdiib'ed in proof.] ,',
I "'.: ·
'(CirCUit Oourt, D. Oolorado.July 9. 18110.)
PATlfNTS'roB INVENTIONB-"-AertON J'oBI1i'PiuNGBMENT-MuBOBI!I OJ' DUUlJlIs.
S:,152' 9 Sup. Ct. Rep.
as a standard to measure. the value, of the patented article, in determining the damages caused by another case of llifringemen1l.Following Budev. Wutouu, UlO U.
A sum paid in settlement of a claim for
a patent oannot be taken
, In Equity. ' G. G.8gmes and R; E. Foot, for complainants. ,a. E,.ariBt and TiuYmaBMacon, for defEmdant.
OALDWEr,t.J. The'.owof WinJield Scott othirB v.The Pueblo Smelting c!', ReJining Corhpany, No., 2,097, has been submitted on exceptions to' report' The court does not do more this morning thari'simply state its corieIusions. The plaintiffs established their right to a patent for an improved method oreS'. by a decree 9fthiscourt rendered, by Mr. J ustica MILLER. "Thereupon it. was referred to a mnster to take and state an account of the gains and, proflts that had resulted to the defendants, and the danlsges'thathad resulted to t/1e plaintiffs by reasonbfthe use of this patented'process by the defendant· The' master has made his report, to which both partieshitve filed exceptions. The master reports that thE"gain or profit by th,edefeudant by the use of the plaintiffs' patented .54'J The defendant excepted to that finding. The proof finding of the ma.ster, and the exception is overruled, and the master's report and findings as to the gains and profits, namely, $10,887.54, is cOnfirmed. ,,: , '
" :proceeded ,to make an inquiry to the, damages that the plaiI,ltiffs lwd sustained bYl,'eason. ofthe use ,of this by the defendant, and he reports that the damages sustained, on the basis be takes for ascertainipg them, Thedefoo<lapt has excepted to that finding of the master, 8PQ" this exception is llul:itained on the authority of the supreme court of. the. United States. I am able to distinguish this case from two recenV1}813eS (infra, decided by that court, in which they lay down the rule thatithepaymeotof a slim in settlelIientof aclaun 10r8n alleged'infringementdfa patent canncit be taken hSil standard' toroeaSUl'e tIle value of improvements patented, in determiningthe'dll.mages'sustained by the ownerofthe patentin'other:caSe8
. Now; the master reports'that...... , 'cotIlpl,al'!ants have not, by 9f Jtcense fees. which, claim tobav'e astal?lisbt\d, a satisfactory measure Of damages; but since 1882 itt appeai'Sthat iii a majority of instances there bas been paid to them by persons using:tbei, improvement the sum of 81,115.38 byway of compromise per furnace; and it appears that in the instances in whicll [they PJlid a leltS sum during that time other considerations than the payment of the money operatt'd to reduce the price. ... ... ... I find that the sum of $1.115.38, payable at the completion of a fu'rnace for that furnace. with interest from the time of completion, furnishes a fair value for the computation of complainant's damages in the premises."
It will be seen that the basis of the is the sum paid by other infri»gers by way ,of compromise. The court of the United States have decided, in two well-considered cases, that this is not by damages in such cases.' 'T1ie tirst,(mse;lsitbat of Rude,v. JJestcott, 130U. S. 152, 164,165,9 Sup. Ct. the C()urt,speakingby ' , FIELD, J .. ,"U'tsiclear Lbata paymellt Of any sum in settlement'of a ,claim for an cannot as a' stanlJal'd,tomel\Bure tbe of the Jmpf,ovementspatented' in determining -tbe damages. sustained by the owners QtHthepatent in other cases of i nfriugement. Many collsiderations other than the value of the improvements patented may induce the payment in such cases. Tho avoidance of the riskand expense of litigation will always be a potential moti ve for a settlt'mt'tlt. ,:*" ' .... , ; ... Bales of ,licenses made at will not elltebUsh any rule on the;snbject, and datel'mine the value of tbjl patent. Like s,les of ordinary mllst be conul:).pn, -that is, of frequent occurrence,-to estllbl.Ml ;such a market price for·the article that it may be assumed to reference" to all similar ,articles, their salable value at the place designlited'. in order that a royalty may be accepted as a measure of damages against an infringer. who is a stranger to the license;establiilhini,r it, ib 'mnst ,be) paill'Orsecured, befole ,the' infringement complained of. [None of these parties paid anything hl're until after the infringement of the patent.] It must be paid by such a number of perBons as to indicate a general acquiescence in its reasonableness, by those who have occasion to use the invention; and it must be uniform at the places where the licenses are issued. Tested by these conditions, the sums paid in the instances mentioned. upon which the master relied, cannot be regarded as evidence of the value to the defendants of the invention patented."
(_,: ' : '.. ' ,.:0,;.,1 ..... ",1 ,_" ;
LIn a: still later case this affirmed, in an 'by BLATCHFORD, in language, (Oornelyv. MarCkwald, 131 'U.,S.159, 9 Sup. Ct. Rep. 744:) ""',. ',IS 'the question 'of a1\ estauliilhedlicense fee. the case Is govern'ed by tberooent decision of this court in Rudev. Westcott, 100 U. 8.152, [9 Sup. Ct.' Rep.: 463,] where it was held; that, the payment of 'n' sum in settlement t:ol' &ll ailE-gad infringement of a patent 'cannot be, taken asa standt(), measure the value of the improvements patented, in determining the sustained by tbeowner 'patent in other cases ot lnfringenient.'" . !twill btl observed by reference to the master's reportthltt the standard ad9pted by.him in this:case, to J)1e!tlJure the value Qft1le improvements patented in determining the plaintiff's damages, is one taa supreme court says cannot be taken, and, furnishes n9basis for a decree for, damages. , The to that part of the report awarding damages to the report, both by plaintiffs and, is sustained. .AU are overr:uleli. "The decree will be entered in accorrlance with the rUlings of the court, and a prayer for appeal by both parties will be entered and allowed.
(Owcuf,toourl; B. D. New York.
MAIUTIME LIENS-FREIGHT AND, DEM'QRRAq. . .
LOST. ' , ,',',' ", " '
A cargo of lath, sold' bY the consignee to the claimant before was diloharged without notice to, c,.laimant f, a, l,ien r claim for frei,g,ht and d,e,m,urrage, it being oustomaryin the port of New 'YOrk to p,ischarge catgoeaffo/ll before dema,nd,ing fre,dgli,t'aDd d,emu,rrage" and,' the laths, as 'fast,, as theY, w,er,,'e dis, by. ,the clai/llant,an!l, transpor,ted, whar;f ,'tf> ,his cllarged, were lumber-yarq. ahalf Libelant's claim for freight and consignee and shippel'being afterwards disputed as to aIl10unt, this libel'wail filed five days after the 'discharge was completed to establish a lien. Held that, as the delivery was uQ,CQnliitional,the lien had been, lost;. A1JiI'miDg 41 Fed. Rep.
In Admiralty. fromdistrlct court. ",Libel by Frank Egan against a'cargo of, spruce lath for freight and The libel 'was dismissed, and libelant appeals. ' ", Hyland Zabriskie,forlibelant. ' , Barker, Jr., for
J. Decree ,of district court affirmed, with costa.