Home/Eighth Circuit/Portland Gold Mining Co. v. Hermann

Portland Gold Mining Co. v. Hermann

160 F. 91, 87 C.C.A. 247, 1908 U.S. App. LEXIS 4181
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 13, 1908
DocketNo. 2,539
StatusPublished
Cited by12 cases

This text of 160 F. 91 (Portland Gold Mining Co. v. Hermann) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Portland Gold Mining Co. v. Hermann, 160 F. 91, 87 C.C.A. 247, 1908 U.S. App. LEXIS 4181 (8th Cir. 1908).

Opinion

PHILIPS, District Judge.

The defendant in error (hereinafter •designated the plaintiff) sued the ¡ilaintiff in error (hereinafter designated the defendant), a mining corporation, for damages for the infringement of letters patent, No. 719,942, issued February 3, 1903, entitled “Apparatus for Screening, Washing, and Assorting Ores.” On trial to a jury the issues were found for the plaintiff on the fourth claim of the patent, and the damages were assessed at $1.

The first insistence of defendant is that the petition counts on damages for profits, which are not recoverable in an action at law, as declared by this court in the r.ecent case of Brown v. Lanyon, 148 Fed. 838, 78 C. C. A. 528. The only basis for the contention, put forth for the first time on this writ of error, that the petition is for an accounting of profits, is the concluding paragraph of the petition that:

“Tho defendant - * * lias continued and persisted in continuing * * * to use said machine and improvement so patented, to the damage to the plaintiff in the sum of fifty thousand dollars. That the profit to the defendant from the said use of said machine and the value to it of the use thereof has been net less than the sum of fifty thousand dollars. Wherefore, the plaintiff prays judgment against the defendant for the said sum of fifty thousand dollars, together with the costs.”

The argument is that as damages for the use are alleged to he $50,000, and the profits of the defendant therefor are $50,000, the prayer for judgment covers the profits as well as the damages for the invasion. It is quite apparent, however, that the double statement [92]*92of the $50,000 sued for resulted rather from the pleader confounding the damages in such action with the claim for profits as synonymous. The case presented throughout the averring portion of the petition is for damages at law arising from the infringement of the plaintiff’s exclusive right to the use of his patented device. Relief can be administered in lawsuits only in accordance with the' facts set out in the pleading, regardless of the prayer. As the profits are based upon the existence of .established royalties, involving matters of accounting cognizable in equity, the bill should be framed accordingly, containing the essential averments authorizing an inquiry for the ascertainment of profits. There are no facts alleged in the petition as a basis for the ascertainment of profits. While at one time in the progress of the trial plaintiff’s counsel sought to raise, by questioning a witness, an issue respecting royalties, it was cut off by the court on objection. As the patent was comparatively new when this suit was brought, there was no established business as a basis for other than nominal damages.

Turning to the question of infringement, the claim of the plaintiff rests upon a combination patent — the combining of anterior, independent devices in such new form of arrangement as to possess the quality of novelty and usefulness. The statute itself provides that things to be patented must be invented things, as well as new and useful things. Thompson v. Boisselier, 114 U. S. 11, 5 Sup. Ct. 1042, 29 L. Ed. 76; Gardner v. Herz, 118 U. S. 191, 6 Sup. Ct. 1027, 30 L. Ed. 158.

The material specifications for this patent are substantially as follows : The invention relates to improvements in apparatus for screening and washing ore -preparatory to sorting, including means for separating the dry from the wet screenings, together with apparatus for drying the latter. That the ore when taken from the mine is coated with fine material adhering thereto during the operation of mining and hoisting, which contains values, adhering to the worthless rock as well as to the rich ore. To avoid the waste of the valuable material thus adhering to the worthless rock and to remove the coating of fine material from the ore in order that it may be intelligently sorted, is the object of the screening and washing operation described in the specification.

The drawing accompanying the application is here presented.

It is an orehouse, with two inclined chutes at the top, the extremities of which unite to form an apex at the track upon which the loaded ore. cars are run from the mine; the chutes being so arranged that the ore may be discharged from the cars on opposite sides. The upper portion of each chute, upon which the ore is first discharged, consists of a grizzly, composed of flat bars, the space between the bars increasing in width from the top downwardly. Underneath these bars is located a screen in the usual manner. The fine material which passes through the screen is in a dry state arid falls into a bin underneath, thence into a hopper, and finally into a car below. Below the screen, and forming a continuation of the inclined chute, is a perforated plate, plain or stepped, the latter being preferred since it causes

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Bluebook (online)
160 F. 91, 87 C.C.A. 247, 1908 U.S. App. LEXIS 4181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portland-gold-mining-co-v-hermann-ca8-1908.