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to resolve every point of uncertainty against the defendant, for he had it in his power to give them accurate data upon which to compute.'

$ 566. Remote consequential damages cannot be embodied in a verdict for an infringement of a patent. The instances in which such damages have been claimed are but few; but they are likely to become more numerous hereafter. It is therefore proper to mention such injuries as will probably be held to fall within such a category.

Pecuniary injury may result to a patentee from a particular infringement, in that it caused him to lose sales on unpatented articles usually sold with the patented thing in question; or in that it so unexpectedly reduced the business of the patentee as to make it necessary for him to sell unpatented property at less than its real value, or to borrow money at more than a proper rate of interest, in order to meet his pecuniary engagements; or in that it encouraged other persons to infringe, from whom, by reason of insolvency or other obstacle, no recovery can be obtained; or in that such infringement caused the patentee so much trouble and anxiety that he incurred loss from inability to attend to other business. But pecuniary injury of either of these kinds would be such an indirect consequential matter as not to furnish any part of a proper basis for recoverable damages.

$ 567. Exemplary damages cannot lawfully be given by a jury for any infringement of a patent.' The meaning of this rule is that juries are to base verdicts on plaintiffos injuries, and not on defendant's ill-deserts. Their function is to award compensation to the injured, not punishment to the injurer. The power to inflict punitive damages is committed by the statute to the judge. He may exercise

i National Car Brake Shoe Co. v. Mfg. Co. 19 Fed. Rep. 520, 1884.

Carter 0. Baker, 4 Fisher, 421, 1871.

3 Wilbur 0. Beecher, 2 Blatch.

143, 1850; Hall o. Wiles, 2 Blatch. 200, 1851; Parker o. Huime, 1 Fisher. 56, 1849 ; Haselden o. Ogden, 3 Fisher, 378, 1868 ; Russell o. Place, 5 Fisher, 134, 1871.


that power by entering a judgment for any sum above the amount of the verdict, not exceeding three times that amount, together with costs. The costs are to be added to the increased verdict, and the judgment cannot be entered for a sum three times greater than the aggregate of the verdict and the costs; and if, for any reason, no costs are awarded to the plaintiff, that fact neither ousts the power of the court to enter a judgment for a sum larger than the verdict, nor constitutes a reason for exercising that power where no other reason exists. But that power will be exercised where the defendant's infringement was deliberate and intentional, even though it may have been committed under an erroneous opinion of the plaintiff's rights ;' or where the defendant acted in bad faith, or has been stubbornly litigious, or has caused unnecessary trouble and expense to the plaintiff ;' but not merely because the defendant's defence was so extensive as to require great expenditure to overcome it."

$ 568. Increased damages may properly be awarded by a court, where it is necessary to award them in order to prevent a defendant infringer from profiting from his own wrong, whether that wrong was intentional or was unwitting. The power conferred by the statute is general. It is not confined to awarding punitive damages, but is to be exercised “according to the circumstances of the case.". Among the circumstances of patent cases, is the fact that the profits which defendants derive from their infringements, are often much larger than the actual damages which those infringements cause plaintiffs to sustain. If, in such a case, the defendant is forced to pay no more than the actual damages, it is clear that he will have derived advantage from



Revised Statutes, Section 4919; Seymour o, McCormick, 16 Howard, 489, 1853.

? Guyon v. Serrell, 1 Blatch. 246, 1847.


4 Day v. Woodworth, 13 Howard, 372, 1851: Teese v. Huntingdon, 23 Howard, 2. 1859.

3 Russell 0. Place, 9 Blatch. 175, 1871; Peek o. Frame, 9 Blatch. 194,

5 Welling o. La Bau, 35 Fed. Rep. 303, 1888.

• Revised Statutes, Section 4919.

his own wrong. It would be an imperfect system of law that would thus put a premium upon its own violation. Prior to 1882, it was understood that means of preventing such a result resided in an option, which it was said every patentee had, of suing at law for his damages, or in equity for the infringer's profits. But in that year, that doctrine was set aside by the Supreme Court, and the jurisdiction of equity was denied to a large class of cases which would be entitled to such a jurisdiction under such a rule. In a case where no injunction happens to be proper, and wherein the defendant's profits are larger than the plaintiff's damages, there is now no certain means of preventing the defendant from deriving advantage from his own wrong, other than that which resides in the power of the court to enter a judgment for a larger sum than the actual damages found in the verdict. That being the only certain means of making infringement unprofitable to infringers, it may well be freely used for that purpose by the Federal courts.'

$ 569. A verdict for actual damages cannot be averted by evidence that the defendant was ignorant of the existence of the patent at the time he infringed. All infringers have constructive notice of all patents, because all letters patent are recorded in the Patent Office. There is no more hardship involved in the rule that infringers are bound to take notice of patents, than there is in the rule that buyers of land are bound to take notice of the real estate records, or in the rule that all citizens are bound to take notice of the laws of their country. The amount of pecuniary injury which an infringement causes a patentee is not affected by the fact that the infringer did not know of the existence of the patent which he infringed ; and where one man has obtained possession, through his own mistake, of the fruits of the property of another, it is better that he be compelled to relinquish them, than that the true owner be prevented from enjoying the proceeds of his own estate.

i Tucker v. Spalding, 13 Wallace, 453, 1871; Birdsall v. Coolidge, 93 U. S. 68, 1876 ; Perry v. Corning, 6 Blatch. 134. 1868; Howes v. Nute, 4 Cliff. 174, 1870; Cowing v. Rumsey, 8 Blatch. 36, 1870 ; Smith 0. Baker's Administrators, 1 Bann. &

Ard. 117, 1874.

? Root v. Railway Co. 105 U. S. 189, 1881.

3 See Sections 419 and 420 of this book.

4 Emerson o. Simm, 6 Fisher, 281, 1873.

$ 570. Neither counsel fees nor any other expenses incident to litigation can be included in a verdict for actual damages in a patent case.' There is no more reason for allowing a successful plaintiff to recover such items, than there is for giving a similar recovery to a successful defendant. Certain expended fees may be recovered as costs by either; but no expenditures or costs can be recovered as damages.

$ 571. Interest should be allowed on royalties, from the time those royalties ought to have been paid, in all cases where a royalty is the measure of the plaintiff's damages.' In such a case the damages are liquidated at such time as the royalty would have been due, if the defendant had elected to purchase instead of to infringe the right to use the invention in suit. No interest is due on damages measured otherwise than by a royalty, because such damages are unliquidated until they are ascertained by an action, except where the method of measurement is as definite and conclusive as it is in the case of a royalty."


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? McCormick v. Seymour, 3 Blatch. 222, 1854 ; Goodyear v. Bishop, 2 Fisher, 162, 1861 ; Locomotive Safety Truck Co. 0. Pennsylvania Railroad Co. 2 Fed. Rep. 682, 1880. CHAPTER XX.

3 Gilpin v. Consequa, 3 Washington, 194, 1813.

4 Creamer v. Bowers, 35 Fed. Rep. 207, 1888.


572. Jurisdiction of equity in patent


573. Jurisdiction of equity to assess

and decree damages. 574. The complainant. 575. The defendant. 576. Original bills. 577. The title of the court. 578. The introductory part. 579. The stating part. 580. The prayer for relief. 581. The interrogating part. 582. The prayer for process. 583. The signature. 584. The oath. 585. Bills to perpetuate testimony. 586. Amendments to bills, when al

lowed. 587. Amendments to bills, when

necessary 588. Demurrers, pleas, and answers. 589. Pleas in equity. 590. Arguments upon pleas, and

replications to pleas. 591. Defences in equity cases. 592. Non-jurisdiction of equity. 593. The same subject continued. 594. Non-jurisdiction in equity, how

set up as a defence. 595. Prior adjudication at law is

not necessary to jurisdiction in

equity. 596. Laches. 597. Laches, how set up. 598. The first of the twenty-seven

defences. 599. The second defence.

600. The third defence. 601. The fourth defence. 602. The fifth and sixth defences. 603. The seventh defence. 604. The eighth defence. 605. The ninth and tenth defences. 606. The eleventh defence. 607. The twelfth defence, 608. The thirteenth defence. 609. The fourteenth defence. 610. The fifteenth defence. 611. The sixteenth defence. 612. The seventeenth defence. 613. The eighteenth defence. 614. The nineteenth defence. 615. The twentieth defence. 616. The twenty-first defence. 617. The twenty-second defence. 618. The twenty-third defence. 619. The twenty-fourth defence. 620. The twenty-fifth defence. 621. The twenty-sixth defence. 622. The twenty-seventh defence. 623. Replications. 624. Subordinate bills in aid of

original bills. 625. Supplemental bills. 626. Bills in the nature of supple

mental bills. 627. Bills of revivor. 628. Bills in the nature of bills of

revivor. 629. Bills of revivor and supple.

ment. 630. Leave of court to file supple.

mental bills, and bills in the nature of supplemental bills.

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