Brown Bag Filling Mach. Co. v. Drohen

• Decision Date: 11 January 1910
• Docket Number: 78.
• Citation: 175 F. 576
• Parties: BROWN BAG FILLING MACH. CO. v. DROHEN.
• Court: U.S. Court of Appeals — Second Circuit

175 F. 576

BROWN BAG FILLING MACH. CO. v. DROHEN.

No. 78.

United States Court of Appeals, Second Circuit.

January 11, 1910

Nathan Heard, for complainant.

Herman J. Westwood and Lester F. Stearns, for defendant.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge.

The report of the master contains such a full and able discussion of the question involved that but little need be added.

The comparison between the cost of doing the work by hand labor and by the patented machine was correctly adopted as the proper standard by which to measure defendant's profits. As there were no machines existing prior to the date of the inventions covered by the complainant's patents, which could do the work, hand labor was the only available standard of comparison. If the defendant had not used infringing machines he would have been compelled to use hand labor. The result reached by the master, after a thorough examination of the testimony, is fair and conservative. In the absence of manifest error it is not the province of this court to disturb the findings of a master reached upon conflicting testimony, which findings have been examined and adopted by the Circuit Court.

The complainant's cross-appeal proceeds upon the theory that the master should have made an award of damages based upon an alleged established license fee for the use of its machines by parties to whom contracts were awarded for putting up seeds for congressional free distribution.

It is argued that the damages, if so found with interest, will exceed the amount of profits and that the complainant should be permitted to elect whether it will recover profits or damages. It is further argued that if it elects to receive damages the court should treble the amount under the provisions of section 4921 of the Revised Statutes (U.S Comp. St. 1901, p. 3395). Regarding the latter contention we may say that we do not regard the present case as one warranting the application of the statute. We have recently had occasion to examine this question in the case of Fox v. Knickerbocker Co., 165 F. 442, 91 C.C.A. 386, and although we sustained the action of the Circuit Court as within its discretion, we intimated that had the question been presented to this court in the first instance the damages would not have been increased. In the Fox Case no testimony showing the invalidity of the patent was introduced and infringement was admitted. It was a bald case of piracy accompanied by circumstances indicating an intention to injure and delay the complainant.

This record presents no such features; it shows the usual conditions obtaining in patent causes. The defenses-- lack of novelty and invention, noninfringement and insufficient description-- presented debatable questions, and it cannot be said that the defendant's course was actuated by malice or bad faith. Instead of making money in carrying out his contract with government, he lost money and the decree against him is sustained upon the theory that but for the use of the infringing machines he would have lost more money. In short,...