Cornelly v. Markwald

24 F. 187

Opinion

Wallace, J.

The clerk properly refused to tax the item of $150 in plaintiff’s hill of costs for the expense of obtaining a model of the defendant’s infringing machine. Irrespective of any question as to the propriety or necessity of procuring such a model, the expense incurred cannot be deemed a taxable disbursement in favor of the prevailing party. The reasons why such an item should not be allowed, are fully stated in the opinion of the court in Woodruff v. Barney, 1 Bond, 528, and in Hussey v. Bradley, 5 Blatchf. 210. It is obvious that it would subject litigants in patent cases to onerous and sometimes to oppressive burdens, if parties were permitted, at their discretion, to procure models, and tax their unsuccessful adversaries with the expense. The question is not an open one. See, also, Wooster v. Barker, 23 Fed. Rep. 49.

The taxation is affirmed.