ant's expert witness Bates is that such changes as could be made by a skilled mechanic in the Hunt elevator would produce a hoisting apparatus similar and operating substantially in the same way and for the same purposes as the Green machine, except some automatic mechanism, perhapS', which, in my opinion, makes Green's apparatus better than Hunt's. There can be no doubt that an examination of the Hunt and Green machines shows that in all essentials they are alike. There is no infringement by the defendant, and a decree will be entered dismissing the bill.
(CircuitCouTt, S. D. Ohio, W. D. February 97,1891.)
PATENTS FOR INVENTIONS-:!;NFRINGEMENT-I)AMAGES.
In '8 s,uit for infringing a patent, it appeared that complainant's patent was' for an improvement only, and not for an entirely new machine. It alsoappeared"that defendants .sold another machine similar to the alleged infringement, and that..l/ofter a while it'ceased to be profitable to defendants to manufacture the lUfringing machine, and they discontinued it. Held, that it was necessary for complainant to appofliionhisdamages and defendants' profits between the patented and unpatented features (If the infringing machine, and was entitled only to the damages attributable to the infringing features. '
In Equity. L. M. Hosea, for complainant. Wood&: Boyd, for respondents.
SAGE, J. This cause is before the court on exceptions to the report of special master, who finds that the defendants have realized $1,905.06 profits from the infringement of the improvements patented to the complainant. The only exception which need be considered relates to the rule of profits and damages. The decree of the court finds that the defendants are liable as infringers of two patents for improvements in lifting jacks. The claim of the first patent (No. 168,663) is for the "block, D, provided with several teeth, that catch simultaneously in those of bar, A, and pivoted to the lever, E, as and for the purpose specified." This is not a claim for the entire jack, but only a small portion of it, to-wit, the lifting block pivoted in a particular manner. . The first claim only of the second patent (No. 172,174) is found to be infringed, and it reads as follows:
"In a lifting jack, the toothed lifting block pivoted to sockets of a double lever, swinging on an oscillating fulcrum, to engage and clear readily the teeth of the lifting bar, as required, substantially for the purpose described."
It was claimed before the master, on behalf of the respondents, that
fhe true rule by which to arrive at complainant's damages is to allow
him the profits resulting from the manufacture and sale of the infring-
4lg,jMk,over and above other and aim,ilar jacks, which he had a right to ·the only patented feature of the infringing jack is. the block,D,and the lifting pawl hinged to the lever, and that the profits on thl$e parts 9n1y are to be paid if any profit Is shown. The contention on behalf of the complainant is that the invention is in fact a complete specific. thing, to-wit, an improved lifting jack, and that, therefore, the rule cited by the defendants does not apply her(). Upon examination of the testiml)Uy and exhibits, lam satisfie<lthat each of the complainant's patents is for an improvement only, and not for an entirely new machine or contrivance, and that the patentee must show, as was held in Garretson v. Clark,111 U. S. 120,4 Sup. Ct. Rep. 291, in what particulars hia improvement has added to the usefulness of the machine or contrivance; and that it was the duty of the complainant to give evidence tending to or-apportion the defendants' profits and the patentee's damages between the patented feature and the unpatented features, and that the evidence must·· ,be· reliable and .tangible, and not conjectural and speculative· . 'rhe,_ testim9ny take,n ;beforethepia,ster is that, during the time the defendants were selling the jack wbich the court found to be an insold a[,l,o,ther jacK of the same in which a,pawl.lever,with pinion on it, took the place of the lifting block jnfringing jack, and thatthis9,ther jack was a track jack, used for'the same purpose as .the infringing;jackjthat the infringing jack was gotten up because of the trip device; and that after a while the railroad ordered it left off, because the men did not use it properly. and the orders fell off, and defendants finally quit making it. It further appears in the evidence that the defendants made a little more profit on the other jack than they did on the infringing jack, and IQld a tpa other jack. " _. of. Black v. r!wme, 111 U. S.124,4Sup. Ct. LWp. 32f),jt: la. clear thl\t ,the cOlllplfttinant:is not entit,led to the entire reaJlJtingfrom the manutilCtqre and sale oLthe infringing jack, blJt On}ythollll,attributable to thelnfringing features· . ! ,'The lJUrden. upon the Gomplainant, and, as he has not 'offered any evidence tending to show that there was any such profit, the sQiltllined, and a decree enteredt1gainst the defendonly.' .
.,1 .., 1 ; " ,
,'t '-, ,
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COMPAGNIE COMMERCIALE DE TRANSPORTATION DE VAPEUR.
Ross et aZ.v.CoMPAGNIE COMMERCIALE DE TRANSPORTATION DE VAPEUR;
(Circuit Cov,rt. JiJ. D. Louilliana. Februarv"l6, 1891.)
A charter-party provided that any question arising between the owners or the master and cbarterersshoU;1d'be referred to the: arbitratlbn, committee of the,New Orleans Maritime Association, "or, at the master's option, to ,,:wo arbitratQrs," chosen in a manner therein set forth. HeW, that, on the master'il refusal to elect 110 arbitrllltJ0q. (lOuld be had; the only remedy for , case bemg Buit fat damages for ,breach ot W subml.t, or 8ult unon their cause 'of action. ' " \ .,. "
TO SUBMIT'"-ARBJTRATION. " ,
. .,.·. "
'1!h.os. J. Serwm.es, for defe;ndant.
.". ;,.' , Horiurf, for
'Btiiri;GS, This cause is on trial before the court, 'a jury having been waived. A question has cQme up8i$ to the validity, and binding force ,of All' award by arbHrl!-tors, and the attorneys by agreement tOJpe lury, The.;pe.rEngland" a,charter-plu1y with reference to the La Gaule, bytheJterrns of which the steam-ship was, among, other things, ta.load or take. on her cargo at New Orleans. The charter-party contained this provision: ' .' '. , i,'J "
arise previous to sailing of loadmg by which the owners or the master and charterers become at vanance as to theiI:respectiverights and 'd tItles;· the satne shall; I there referred' to the arbitration of. New, OrlEjal}8 ()r. at master'8optlOn, to two appointe(} by, tpe maste.r, and the other by the charterers or 'their age'rits. In case of disagreement, tlIesetwo arbitrators shall choose an umpire, who shall, decide. It is agreedtllatthe committee of the maritime assoCiation or the arbitrll.torsa'ndtheii'umpire shall have the . power 'of amicable compounders, andtbeir decision shall be binding on both parties, andwitbout appeal." , t' .
While tbevessel was 'loading, a. question did' arise. The plaintiffs 'addressed: to the defendant's agents in New Orleans the following notes: ., ,.. . "NEWQRLE4NS;14th April,1885. "Messrs. S. V. FomariS & Co., Agents Ole. Ootnm.erciale-GENTLiHEN:
We beg to notify you that we cl;dm an arui'tration, as provided in the,charter of S. S; La Gaule,on points in dispute. ' . .' , ,
tion provided for in. the cbarter of yO,ur.vessl:Il to de<;ide the :qu6liticim same nowin please us yOll allowed you of selecting atl arbitrati(m: committee outside that of the'm,aHtime Ass'u. . Hespectfully,·"·' . [Signed]
NEW ORLEANS. 14th Aprll"l885. "Oapt. Renaland, B. S. L(L Gaule-DE4n. 8m: Allj we claim the,arbitra-