N"''tCho18,21 Wnll. 112;:: 'Wood Paper Patent, 2B ,wan. 56&; p.Woo8t8r v; Oalhoun,l1 Blatchf.215j; ExcelRiOrNeedle 00. v. Union Needle 00l; 28 Blatchf.147, 152, 82 Fed.' Rep. 221; Hatch v. Moffitt;· 15 Fed. Rep. 252. , ' 'The ·testimony' of complainant's expert denotes that· Hansen's rennet .powder is richer in pepsin, imd.'containsmore of the mucous and albuminous' matters, than Blumenthal's rennetil1e. According to the tes,timolly; introduced by the defendants the Hansen product, is made by treating calves' rennets according to the process practiced by Scheffer in treating hogs' stomachs to obtain pepsin, described in the publication which has been referred to. Theil': theory is that, when his process is employed ,in the treatment of hogs? stomachs, a product is obtained which 'is .strbtlgin pepsin, andweak·in chymoRin, and when that process is artll,16yedto treat calves'stomachs, the product is an extract strong in chyinosinandwE'ak in pepsin. In any view of the case the charge of infringement is not establW1ed. The bill is thertllore dismissed.
Co. et 01.
(Circuit OCY/J,rt, D. Connectf.cut. October 4, 1890.)
PATEN'!:S POR INV1:'N'l'IONS-ANTIOIPA,TION-EVIDBNCm.
The invention described in letters patent No. 865,819, issued July 5,1881, to Horatio Jordan, for improvement in the art of welding the ends of metal tubes. and . consisting in but-welding the ends of tubular metallio blanks, like those theretofore used, is near the dividing line. between the work of an iuventor and of a meohanic; and the eVidence of cutlery manufacturers that they'had but-welded such bllinks before the patentee"s invention being a natural and probable occurrenoe, is sumcient to satisfy the court of the fact of anticipation.
InEquity. . Bill by William W. Lee against the Upson & Hart Company and others, to restrain the defendants; from infringing letters patent No. 865,8J.9; issued July 5; 1887, to Hotatio Jordan,· for improvement in the -art of welding the ends of metaltubes. For former opinion I 800 42 Fed. Rep. 580. Edward S. Beach, for complainant. John P. for defendants. SHIPMAN,J. This is a petition of the plaintiff for a rehearing of the above-entitled cause. The bill was dismissed, upon the ground that the invention desoribed in the patent in suit, known as the " Jordan Patent," -had been anticipated. 42 Fed. Rep. 580. The plaintiff. asks for a ra'hearing on account of the insufficiency of the defendants' testimony up,on this point The case showp.d that the Jeraldsand Lawton blank for 'a hollow knife-handle, which preceded Jordan'8, was a tubular metallic ,blank, having at one end projecting lips which were bent inwardly, edge
to edge, and which were to be brazed together; that these lips were very like those of the Jordan blank, were bent towards) each other in the same way, but were nearer together than in that 'biank; that a Jeralds and by tbe.use of the approLawton blank was. capable of priate dies, and that a skillful forger of metals could have but-welded such a blank, hefore the date of the Jordan invention, if he had been told to 'dait; The Jordan improvement, so far as it was disclosed in the but-welding, instead of brazing, the oval ends of a Jeralds and Lawton blank. Soldering, brazing,and lap-welding the and bu.t-welding the side seams, of a hollow handle blank, had' been well known before the date of either patent. The Jordan patent disclosed nothing in regard to the. shape of the dies. That Was to be adjusted by practice. The patentability of the invention seems to rest upon inadequate foundations, and, accordingly, wall but, from the history of the art, was led to the conclusion that the idea of but-welding the ends of a Jeralds and Lawton blank was the fruit of an inventive mind. It is still plainitbl!'tthe ,alleged invention is very near to the diViding line between the work of an inventive, and that of a merely mechanical, mind. This being the character of tbe invention, ,the Messrs. Hart ·testified that they practiced the sume art in 1881, and that story is R natural and probable one. They were the sons of R manufacturer of iron and steel edged tools, worktil'.in rtheirfather's shop, had long been familiar. with welding and brazing, were familiar, before 1881, with hollow handles in which a seam was formed by brazing or .soldering, began to be manufacturers of table cutlery in,1878, wer.e inventors, and, as appears from a patent to H. 0., Hart,were certainly: familiar, in 1883, with a hollow handle, the lips of which were bent together for brazing. That the idea of but-welding the inclined lips of the end of a hollow handle should occur to them, and. that: f!hey should carry the idea into effect, was most natural. It was not a'mystery,to them. If. the improvement had been a complex mechanism" if the essence of the invention, had· been the nice adjustment of parts to produce a result, or if the thing to be done reqUired genius of a Buperior ,Qrder, the testimony would have been insufficient; but it requires Dluch less testimony to satisfy a court that the Messrs. Hiutl , who had brazed, and welded, and but-welded, for years, conceived and carril!d out the idea of instead of brazing the inclined end, lips of a· blank, than it would to satisfy a court that they had made a new, complicated macbine. In suoh Rease as this, the severe scrutiny which is' given to thE' alleged anticipation of tbe Morse telegraph, the, BelLWephone, or the Howe sewing-machine is not called for, .because reasonable doubts do not exist. The argument of tbe plaintiff forgets that it requires less testimony to establish' a factwhich was very likely ,to have occurred, than to establish an improbable theory. The application is.denied.,
AM ENDE V. SEABURY
(otrCW£t Court, S. D. New York. August 5, 1890.)
PATEN'TS FOR INVENTIONS-DAMAGES FOR INFRINGEMENT.
One wbo manufactures and sells a patented article is not relieved from the liability to account to the patentee therefor by the fact that he might have .sold the ingredients of which the article is composed at the same or even a larger profit.
In accounting for the profits made by a corporation in the manufacture and sale of a patented article no allowance should be made for the se'l.'Vices of the president of the corporation where it is not shown that he received a salary. .
SAME-Loss OF PROFITS.
Where the reduction in the price of a patented article by an infringer compels the patentee to reduce his price als6, the loss caused by such enforced reduction is a proper item of damages ina suit for infringement.
In estimating the profits of a business, interest on the capital invested should not be considered. .
InEquity'., ,Bill for infringement and accounting. . master's report. Antonio Knauth, for complainant. N. T.· M. /rlel1:i88, for defendant.
On exceptions to
WALLACE, None of the exceptions filed by the defendant to tbe master's report are well taken. 1. The corporation defendant manufactured and sold the borated cotton of the complainant's patent, and it was properly beld liable for the profits derived from the manufacture and sale of that article, notwithstanding itniigbt have made and sold the cotton, boracic acid, and glycerine, which am the ingredients of borated cotton, if it had chosen to do so, and at the, same or even a larger profit. Instead of selling these ingredients,;however, the defendant preferred to convert them into the new chemical composition invented by the complainant, and whatever profit it derivedacqrued by reason of appropriating the patented invention. 2. The maSter properly refused to allow the defendant, as an element of the "factory cost" of the borated cotton, interest on the capital of the corporation.invested in its business. As the supremfl court say in disallowing a similar item in Rubber Co. v. Goodyear,9 Wall. 804,in ascertain'ingproflts: ,liThe calculation is to be made as a manufacturer calculates the profits of his business." In calculating profits, manufacturers customarily treat as items of expense interest paid out on money borrowed for the use of the business. as well as rent paid for the use of property in the business; but it is not customary to charge against profit interest upon the capital embarked by the owners in the enterprise, or rent for the use 01 property o"'ned by them. There is nothing inconsistent with this conclu-· sian in the opinion in Manufacturing Co. v. Cowing, 105 U. S. 257, because, for all that appears, in that case the "use of tools, machinery, and power," for which it was said an allowance should be made to the defendant, may have been a hired use.