wasderl,,'etHfbththe \1se'oftH&l plttefitEid 'pntlieconttary, the any.'l·elatihgtothe tilatter, tends strol;gly reliable and tangIble the Jack;!lS a ,h.is p'atentad fe,atu,re, "the conjectUl'eOt 10 order t6 the defendant8/, It was open that hadreceWed an increased price 'for tl1:eif attributable t6 his patented iiriproveU1Emt, the :infringirig: jacks deri"ed ,their entirevalue,as marketable'Rirticles, from Hehas'(liiltld to do either, and we are 'cleiirlyof theopinidti tbat the decree below Was therefore correct, and ahouM l;>e with"<cdsts of appeal, and it is accordingly so ordeiedandadj\idgM.· .' .
C01l,rt/N;D. California. June 9, iS92.)
When a patent COVers 'only cettlii'n features of a machine and not the entire ma' chine, If the' patent features constitute the essential features of the·macbine and It wltllout which tl:\eJpll,Chll1e w:ould be val.ueless and unllalable. the , .. Qamages antl',profits forinfringernent must be calculated on the 'basis of the entire " machine, and':nat merely on', the patented features alone. 8. SAHli·· ," ,;' , ' , ' " " ,,:., , " , To to as damages for infringement tbe profits he would , have realized ir he bad made 'tbe Il8les wnfch were made by theinfringerj be must sbow had the ability to that he would have said Bales but for the infrmgement. , ,.
, Olai tn, 1 of patent :No, dated May :1.880, and olalm 1 of let1lers patent N9. 290.858, datE!d December 18.18b3, both granted to J. A. Robb forimprov&ments hi eilgerll. embrace ahd 'eovet' the essential features of the patented machine, l\u!l«l'te-it withoutwbiob. features It would be valueless and unsalable.
InEquity. Exception to a master's report. Complainants 'br6ugbt suit for an injunction and recovery of damagesanq profits for infringement of the first daim of letters patent No. 227 dated May 25, 18S0,und the first claim ofletters pll:tent o. 290; 358 December18, 1883, botl} granted toJ. A. ltobb forimprovefuentsinedgers. The first patent covered a mec4aIlism fol', laterallyshiftihg the saws along the arbor of an edg;er for the., the distance between, them, and thereby of boards,' ,,The second patent covered a :is.m f<?r sim'ulUl,neo\1sly raising the upper feed 'rolls of an edger. On ,fibal Madng tIill two daims menWmed were held tobe the respondents,and, the ,case the master of chancery to take all accounting. ,See 1'atum v.Gregory, 41 Fed. Rep. 142., Accounting was taken, 'in which the master 'folind' that the patented featureS were
'tATUM V. : GREGORY·
th,e featul'e$ rgll.ve it its Val\lli, anq witho1i1ttbeijl, the machine. was. valuelessandv.nSS11able.. He f,I'JlIther found:that had made )lnd sold nine. edgers; containing the thllot gran;led nolicenses,.but kept the patent and supplied the market them.sllives; tpat they, ,and.; operated ,lj. machine;sbop, where the edgers,were if no,infringement had occurred, they C9uid,and· wpuld have solp,g:n equa.lJlu'mber of their edgers to: the purchasers<Wbo and they would. made as profitsQnsucb bpught sales: IOn ;theacc\luntipg,respondents admitted making a p;r,ofitQf.$9.00 0Jl the infringing. edgers sold: by .. John H·.¥u.ler, for complainants· . John I..!J()one, for, respopdents.
Circuit Judge. The patented device was iuventedby,orae Robb,' and ·is. one for shifting the saws and simultan.eouslyraising, the top feed. rolls machineu:sedin sawmills called ,an" edger." .The deVice does not form· the' whole machine, but it.1s the essential feature; tnakea,the mer;jt,Qf the newona, and the edger has uo::value .or use witholIt it,4s not salable witlaoutit. The case of Yale Lock Ma'(luJ'g Oo.;v. Sargent, 117. U. S. 53&,6 :Sup. Ct. Rep. 934 , applies:, and damagesrillust be adjudged, 9n the. basis of the entire edger. What arethe damages? '!'rhe the ownersof,the patent,and reserved to the right,q>f ma.nufacture and sala..The :measure of:damages therefore is either the profits they would have made but for the infringing sales, together with the reduction of price on their own sales, or the profits that the respondents made. There was no reduction in the prices of their own sales. These were maintained. To enable complainants to recover their rate of profit on respondents' sales involves the two conditions that they had the ability to and would have sold their machine to the purchasers who bought of respondents. The first condition is established; the seconel, the master said, "does not so clearly appear." He infers it, however, from the testimony of a Mr. Smiley, a witness and employe of complainants, whom he quotes as follows: "I know that people haven't bought from us on account of our high prices, as they have said, and they placed the order with Spaulding," (meaning respondents.) This is a positive assertion that complainants lost sales by the competition of respondents, but its positiveness is abated on further examination, and the statement shown to be based on conjecture, and, so far as it asserts sales to customers of complainants, a mistake. In explanation of what he meant by lost sales, he said that parties made inquiries at complainants' store, but were deterred from purchasing by the high prices, saying "they could do better." Though claiming a good memory,-so good that it was appealed to in cases of doubt by his fellow clerks,-he was only able to remember one instance of this. One of whom he called the Korbell Bros.,-which one he did not remember,-told him that he had bought an edger of Spaulding, and the witness concluded by saying "that an examination of Mr. Spaulding's books will prove that I am
FEDERAL REI'OBTEB:, ''\tot
IAn' examination of Mr.Spatllding'shflo'k:sproved that he was Mr. Spaulding did not sell to Korbell Bros., an edger. A transcript :ofihIsbooks showed a sale, of nine edgers I but none to Korbell Bros. or to .the company to whiehthey belonged. From testimony so vagueandtnistaken no judgment can ,be formed. There was no other testimony of lost sales, Rnd no presumption can be safely indulged in agairistthe tabt that there were other competitors of complainants besides4'espondents, other Eldgers, and other infringers. If the other edgers are <conceded to have been inferior, they were chell.per, and the testiU1Qny:shows were saJable, and there are suits pending against other infringers.· In this condition of things and the evidence it would be incurring too much risk of doing injustice to decide that plaintiffs would have made the sales which respondents made. In other words, that the purchasers from respondents would not have bought of them or another sQme!otheredger, or boilght theSllme edger from another infringer, but would have bought of plaintiffs ata higher pricej that they would not have done what the witness said they did do. I do not think, therefore, that the evidence sustains the finding of the master that plaintiffs incurred'$1,742.62 damages by respondents' sales. The contention of respondents' counsel that complainants Can only recover nominal damages cannot be sustained. There is proof of other damages. Responden:te admit that· ,they made a profit of $100 on each edger, or $900 in all. Therefore final deoree will be entered for complainants for $900 damages, costs ofsuit, and the injunction will be made perpetual.
THE CHARLES WETHORlIl. UPToN
THE CHARLES WETMOUet al., WOOD, Intervener.
(IJiBtrict Court, D. Oregoo. July 9, 1892.)
The" whliLleback" steamer W., valued. with her cargo, at 1409,219, lost her rudder plates, and was drifting shoreward in a storm near Tillamook rock, about 30 miles south of the mouth of the Columbia river. The steamer Zambesi, worth $220,000, bound frolll Victoria, B. C., to Portland, Or., having been driven south of the Columbia, discovered the Wetmore flying signals of distress. With some difficulty a hawser was made fast, and the Wetmore was towed near the mouth of the Colum· bia, but, no pilot being available, tbe vessels were held oft the bar until next morn· ing. The Zambesi then steamed for the river, but when three and a half miles oft McKenzie's head the hawser parted. It was recovered, and again made fast during a period of increasing danger. A pilot was procured, and the bar was crossed in safety. The Wetmore, being very neavy, yawed from side to side, rendering it necessary to cross the bar very slowly, and, as the tide was flooding, the heaving seas traveled faster than the Zambesi, thus beating upon and sweeping over her, straining her decks, breaking in her house, and otherwise injuring and imperiling her. Held, that $20,000 should be allowed for salvage, and distributed, 17,000 to the Zambeei, $5,000 to her master, $5,000 to her crew, $2,000 to the pilot, and $1.00000 the mate.
In Admiralty. Libel by Frank Upton against the steamer Charles Wetmore and cargo for salvage, the American Steel Barge Company being claimant of the vessel, and the Pacific Steel Barge Company claimant of the cargo. George W. Wood intervened, claiming compensation for services as pilot. Decree for libelants and intervener. Mr. Alfred F. Sears and Mr. Paul R. Deady, for libelant. Mr. Zera Snow, for intervener. Mr. a. E. S. Wood and Mr. Couch Flanders, for claimants. DEADY, District Judge. This suit was commenced by Frank Upton, libelant, against the steamer Wetmore, her tackle, apparel, and cargo, on December 10, 1891, to obtain compensation for a salvage service rendered them by the libelants. On December 11th the vessel was arrested and delivered to the claimants on the 16th, on the stipulation of William S. Ladd and R. Wile liams in the sum of $200,000. On January 4, 1892, George W. Wood, the pilot on the Zambt'Mi when she crossed the bar of the Columbia with the Wetmore in t<m l filed a libel of intervention, asking for compensation for his servicerL the Wetmore in conducting her across the bar as a salvor. After a careful examination of the evidence I find the material fact-'J of the case to be as follows: 1. On the morning of Tuesday, December 8, 1891, the Charlus W. Wetmore. an iron, screw steamer of the type called "whaleback," being of 10,750 tons register, In feet draft when loaded, and valued, with her cargo, at $409,219.09, while on a voyage from Philadelphia to Puget sound, was lying 4 or 5 miles from the shore in the Pacific ocean, a v.51F.no.7-29