though the act be silent as to accessories. Why not the procurer and aider here? The argument that the abettor and aider should escape the punishment affixed ou the statute which declares the act a misdemeanor, does not commend itself to my judgment. See authorities in 4 Dill. 410; also, Russ. Crimes. , The prisoner is remanded. Bail fixed.
(Circuit Oourt, W. .D. PennsylfJania. December ,21,1880.)'
LETTERS PATENT-INFRINGEMENT-MEASURE OF DAMAGES.
The measure of damages for the unauthorized sale of a patented article is , the difference betweel1the cost price to the patentee and the market price when the sales were made.
In Equity. Exceptions to master's report. The suit was for infringement of patent No. 66,692, granted to defendant on July 16, 1867, for improvement in saws, and assigned to complainant. The improvement consisted in providing the saw with a series, of holes, corresponding with the wear of the teeth, to facilitate dressing or filing the saw. Defendant contended that complainant was entitled to only so much of the profit as was due to the presence in a saw of the holes, over an ordinary saw without them. Complainant contended and the master held that there was or should be only one perforated saw, and that the complainant was entitled, as damages, for all saws sold by defendant, to the difference between complainant's cost and selling pri.ce of an equal number of saws. The master citedRubber Co. v. (Joodyear. 9 Wall. 788; CaWood Patent, 94 U. S. 695; Pitts v. Hall, 2 Blatchf. 229; Cowing v. Rumsey, 8 Blatchf. 36; Hostetter v. Vowinkle, 1 Dill. 329; aM found that the case of Buerk v. Imhaeuser, 10 O. G. 907, differed from this, because in that case it appeared that there were other watches in the market. Knox If Reed and C. A. Van Darn, for complainant. Bqkeu;ell 0; Ker'r, for defendant. McKENNAN, C. J. The rule for the ascertainment of the damages, adopted by the master, is fairly deducible from the cases discussed in his report, and, it may be said, from others of corresponding tenor which might be cited. It is appropriate to this case, if it is not the only practicable one. The difficulty is in the administra.tion of it. It is not an unreasonable inference that .the profit derived by the complainants from the sale of their saw is due to the patented improvements embodied in it.' Hence it was' proper to take the difference between the cost of its manufacture and the· price at which
the infrmging saw was sold; as the measure <$ompla.inint's damages or loss. Upon this basis the master has assessed -the dam. ages. He has taken the whole number of infringing saws made ,and sold by the defendant, and in view of the localities where the;:sales were made, the readiness and facilities of the complainant for supplying the market in those localities, and the strong probability,:therefore, that it would have supplied it, if it had not ,been Occupied by the defendant, has allowed the difference between the cost and prices as the aggregateamol}nt of the complainant's damages. We cannot say that this is unwarranted by the ,proofs. ' ",; , The exceptions are therefore overruled, the master's report is Con, firmed, and a decree will be entered for the damages reported, with costs.
and andther v.
.s. D, New Yor-k.
July 7, 1881.L:
LETTERS PA'l'ENT-DEFENCEOF PRIOR. PATENTS AND PuBLICA:TIONS::':"PLEADme m EQUITY UNDER REV., S'l', § 4920, SUBD. 3. _
The defences of a prien' patent or previous' description in a printed publication. specified in subdivision '3' of section 4920 of the Revised Statutes, must, in & suit in eluity, be set up in an answer and not in a technical plea.
J. A. Whitney, for plaintiffs. F. R. Betts, for defendants. BLATCHFORD,C. J. The 'purport and object of the plea in this case seem to be to put in evidence certain specified patents and publications which the plea alleges existed prior to the original patent sued on, and describe and show inventions and subject-matters embraced and contained in the reissue. These patents and pUblications are set up in the plea as showing that the reissue is not for the same invention as the original patent, "but embraces and contains" wha,t is found in such prior patents and publications. It does not fol,1ow tbatbecause what is found in the reissue is found in patents and publications which existed before the date of the original patent, the reissue is not for the same invention as the original, because, equa.lly well, what is found in such patents and publications may be found in the' original; and it is not alleged in the plea that what is so found in such prior patents and publications is not found in the original. It is true that the plea says that the reissue contains matter not known t:J, or invented by, the patentees at the date of the original, and m.at-