Creamer v. Bowers

• Decision Date: 24 May 1888
• Citation: 35 F. 206
• Parties: CREAMER v. BOWERS et al. [1]
• Court: U.S. District Court — District of Delaware

35 F. 206

CREAMER v. BOWERS et al. ^[1]

United States Circuit Court, D. Delaware.

May 24, 1888

Frost &amp Coe, for plaintiff.

W. C Spruance and Chas. M. Curtis, for defendants.

WALES J.

By an interlocutory decree of this court, made on the 21st of November, 1883, the defendants were enjoined from infringing letters patent No. 89,897, dated May 11, 1869, issued to the complainant for 'a new and improved mode of constructing ventilating and hot-air registers,' for the side of a railroad car, with an order of reference for an accounting of profits and damages. The complainant was a manufacturer and seller of supplies for railways. The defendants were manufacturers of railroad cars, and in the year 1872 became customers of the complainant, and bought a large number of patented registers from him, and continued to make such purchases down to the close of the year 1878. During this period the defendants were also wanton infringers of the complainant's patent, making and using registers similar in all respects to his invention, and supplying railroads with the infringing articles. The complainant charged no royalty or license fee, but maintained a close monopoly of his patent, and supplied the whole market himself. The defendants sold each car manufactured by them, and which was equipped with the infringing registers, as a whole, and without reference to the cost of price of such registers. The master has now reported the number of registers so made and sold by the defendants to have been 853, and, allowing $2 as the loss incurred by the complainant on each register, has assessed his damages at $1,706, with interest from the date of the decree. The defendants have filed 27 exceptions, many of which are repetitions, and only a few of them require consideration.

It is insisted that the master should have reported no more than nominal damages. The rule for estimating damages sustained by patentee, by an infringement, varies according to the mode in which he uses his patent. Where he has fixed a royalty or license fee for the making, using, or selling the patented article, the amount of such fee or royalty will be the measure of his loss, and his damages can be readily ascertained by multiplying that amount by the number of infringing articles; but if he maintains a close monopoly and is ready and able to furnish the whole market with the patented articles, he must prove by satisfactory evidence the advantages gained by the infringer in the unlawful use of the patent, over and above the advantages which he could have derived from the use of similar articles, unpatented and open to the use of the public; or must prove the loss or falling off of his own sales in consequence of the infringement, or a loss by the compulsory reduction of prices made necessary by the competition of the infringer. The rule varies with the special circumstances of the particular case. Livingstone v. Woodworth, 15 How. 546;

Seymour v. McCormick, 16 How. 480; Mayor v. Ransom, 23 How. 487; Mowry v. Whitney, 14 Wall. 620; Philip v. Nock, 17 Wall. 460; Birdsall v. Coolidge, 93 U.S. 64; Cawood Patent, 94 U.S. 695; Blake v. Robertson, Id. 728; Garretson v. Clark, 111 U.S. 120, 4 S.Ct. 291; 114 U.S. 439, 5 S.Ct. 945. It is objected that the complainant's patent was for an improvement only, and that no evidence was offered before the master to distinguish the value of that improvement, or the profits and advantages which could be gained by its use, over the other unpatented parts which belonged to the register. If this were true, the complainant could not recover more than nominal damages. A majority of the cases just cited afford illustrations of the impossibility of assessing damages where the patent was for a particular feature, and no evidence had been furnished to prove the value of that feature separately from the value of the other parts of the machine or article to which it belongs. In Dobson v. Carpet Co., the patent was merely a design for a carpet, and the advantage due to the design could not be separated from the carpet as a whole, and consequently there could be no recovery. But the present case is not included in this class. Here the patent was for the register as a complete article, and not for any part of it exclusively. The description of the complainant's patent does not give prominence to any one portion of the register, and the claim is as broad as the description. It is further objected that there was no satisfactory proof that, if the defendants had not infringed, they would have purchased from the complainant patented registers equal in number to the infringing registers made and used by them. That the defendants would have made such purchases is a reasonable conclusion from the evidence. It is certain that they made large purchases at first, and that they did not, during the time they were infringing, wholly cease buying from the complainant, and their conduct convinced the master that in all probability they would have continued to buy at the same rate as formerly if they had not infringed. This cannot be considered as a conjectural or speculative inference from the facts proved. It is true, there may be a possible doubt on the subject, but in cases of wanton infringement every doubt and difficulty should be resolved against the infringer. Rubber Co. v. Goodyear, 9 Wall. 803. All that is necessary in order to prove actual damages is to furnish some reasonable basis or data on which to calculate them, and whenever the evidence is sufficiently definite to show the pecuniary loss suffered by the complainant, he is entitled to be reimbursed, no matter whether the infringer gained anything by the infringement or not. Walk. Pat. Sec. 565; Seymour v. McCormick, 16 How. 480; New York v. Ransom, 23 How. 487; Truck Co. v. Railroad Co., 2 Fed.Rep. 681; Zane v. Peck, 13 F. 475; Hall v. Stern, 20 F. 788; Hobbie v. Smith, 27 F. 662; Royer v. Coupe, 29 F. 358; Lock Co. v. Sargent, 117 U.S. 552, 6 S.Ct. 934; Roener v. Simon, 31 F. 41. The allowance by the...