Bostock v. Goodrich

25 F. 819, 1885 U.S. App. LEXIS 2342

Opinion

Butler, J.

The infringement complained of and decreed against, is of claims 2, 3, 5, and 6 of patent No. 64,404, and claim 1 of patent No. 80,269.

These claims are for improvements in “tuck-markers,” consisting of minor combinations and devices employed in such machines. Tuck-markers (differing from the complainant’s only as respects these combinations and devices) had been in use for many years prior to the date of these patents. The complainant simply improved the old machines, rendering them more serviceable than before, by increasing their adaptability to the use contemplated.

The rule for ascertaining profits, applicable to the case, is therefore, the one applied in Garretson v. Clark, 111 U. S. 120, S. C. 4 Sup. Ct. Rep. 291, and more recently in Dobson v. Carpet Co., 114 U. S. 439, S. C. 5 Sup. Ct. Rep. 945.

While, therefore, we might possibly not agree in all the master has said upon the subject of profits, his conclusion is right. The burden rested on the complainant to prove the proportion of profits justly ascribable to his improvements. Having failed in this he is entitled only to nominal damages.

The exceptions must be dismissed and the report confirmed.