Keller v. Stolzenbach

• Decision Date: 02 July 1886
• Citation: 28 F. 81
• Parties: KELLER and others v. STOLZENBACH and others.
• Court: U.S. District Court — Western District of Pennsylvania

28 F. 81

KELLER and others v. STOLZENBACH and others.

United States Circuit Court, W.D. Pennsylvania.

July 2, 1886

D. F Patterson, for complainants.

Geo. H Christy, for defendants.

ACHESON J.

If it be conceded that where a profit or saving is shown to have accrued to an infringer beyond the amount of the established license fee for the use of the patented machine, the patentee suing in equity for an account of profits is not ordinarily to be limited to such fee; and assuming that the evidence discloses with sufficient clearness the number of bushels of sand treated by the patented apparatus on the dredging-boat Wharton McKnight, and the amount of the savings to the defendants thereby effected,-- it still remains to be considered whether the defendants are justly chargeable with profits, in view of the exceptional circumstances of this case.

In the first place, be it observed, the defendants were not wanton infringers. They acted under a bona fide claim of right to use the invention, based on the late partnership relations and dealings between the patentee, the plaintiff Keller, and the defendant Pfeil. It is true, the decision of the court has been adverse to that claim, (20 F. 47;) but the question of right was fairly debatable, and the proofs left the defendants' integrity untouched. And then, in the second place, the plaintiffs' demands may well be moderated by reason of the laches imputable to them. The history of the case is this: The patented apparatus was put on the Wharton McKnight in the spring of 1879. Very shortly thereafter Keller brought suit in this court against Pfeil and his associates to restrain its use. To the bill the defendants filed a plea setting up Pfeil's claim of right to use the apparatus, and the grounds thereof. The plaintiff failed to reply to the plea, and, for a period of more than two years neglected to move in the cause, or put it in a condition for further prosecution; and eventually, on May 10, 1881, after notice, and under the provisions of the thirty-eighth equity rule, the court adjudged and decreed that the plaintiff was to be deemed to have admitted the truth and sufficiency of the plea, and that the bill be dismissed. The defendants were then suffered to continue the use of the apparatus on the Wharton McKnight for a period of nearly two years before the present suit was brought, on April 9, 1883.

Now, we have, indeed, decided that the decree dismissing the former bill for want of prosecution was no bar to this suit, but it by no means follows that it is to be without influence when we come to deal with the question of the extent of the relief which should be extended to the plaintiffs. The decree proceeded on the ground of the acknowledged truth and sufficiency of the plea implied by the plaintiff's inaction. The dismissal of...