Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1880-04-16
THE OPINION.
Circuit Court OF the United states Dis
triCt OF Vermont.
lN EQU1TY FEBRUARY TFRM, 1850.
RILEY BURDErr VS.. JAcoD EsTHY, julius J. EsrEY


The patent is for an additional partial set
of reeds, placed in the common double reed.
board of an organ between the short reeds of
the other two sets, inclined and extending
downward to the same base, without separ-
atlng the other sets any further apart than
they would be alone, and without lengthen.
ing the valve openings or increasing the pow
or necessary to operate the instrument, and
is dated February 22d, 1869, ante.dat Au-
gust oath, 1865. The specification describ-
ed tuning this set on key slightly different
from that of the other sets, whereby a wavy
tone Of music would be produced and set
forth independent hampers for each set
which were claimed in the patent, but to
which il was found and held that the in
ventor was not entitled, and which he was
required to discaim before having decree
which he did, and filed proof of in court, De
cember 4th, 1873, whereupon a decree was
entered for, among other things, this account
ing.
The master reports that between August
24th, 1865 the ante. date of the patent and
February 23d, 1868, the date of its actual is.
sue, the defendants made and sold consid-
cradle number of organs and between Feb
ruary 23d, 1853, and May LIST, 1874, a large
number more, all of which contained the par
tal sets covered by the orators patent and
on all but a very few of which they received
profits in additional price on account of the
partial sets, stated separately for each space
Of time; that the wave tuning was an impor-
tant factor in producing the additional prof
Its for the partial sets; that horizontal par
tial sets placed Oh the upper surface of the
reed-board, instead Of being inclined into it,
not covered by any patent and not then in
use, would have been practically as good as
the inclined sets that the orator testified
that he should judge that firm of which he
was member would have sold at least one
hundred organs month more than they did
If they had controlled the patent. and that
there was no other evidence as to damages
whercupon none were allowed and that he
allowed TO the orator the whole profits stated
subject III whole and III detail to the opinion
OF the Court upon the questions presented
The principal questions raised upon the re-
port and exceptions, and insisted upon in mr.
Gument are, whether the orator is entitled to
recover for anything done or received before
the actual issue Of the batent whether upon
the facts stated the orator is entitled to these
profits at all whether if entitled TO profits he
should not be allowed to recover as for prof
It's on those infringing organs, disposed of
without profit on that account at the same
rate as on those for which profits were re-
ceived; whether on the evidence, some dam
ages IN addition to profits, should not have
been found; whether the orator is entitled to
interest on the profits allowed and if so,
from what time; and whether he is entitled
to any costs upon the accounting or in the
suit.
Although this patent was granted under
the act of March I'd, 1861. which provided.
III section IL, that all patents should remain
III force for the term of seventeen years from
the date of issue, it was subject to the pro.
visions of section 5 Of the act of july lth.
1896, ! Stats at Large III, which were not
superseded by the act of 1861 De Florez
VS.. Reynolds, II OF. Gaz. SOB.
BY the provisions Of that section the an.
plicant for patent could have it take date
from the time of filing the specification and
drawings, but not more than six months prior
to the actual issue. This patent was not ante
dated more than six months, and came with
III those provisions. 1t is not like q re-issued
patent, expressly restricted in operation to
causes OF action thereafter arising Act of
1876, sec. 10; Rev. Stats, sec 1916 Moi
fit VS.. Carr, ! Black 273: but it has the full
authority of the act of Congress giving il ef.
feet from the prior date. And Congress has
as full power to protect the rights of an in
Ventor before the granting of patent as af-
ter
The wave-tuning was common and free to
all alike, the same as the wood of the reed
the defendants nor any one else had any mo-
nopoly of it. When the defendants used it
in appropriating the orators invention the
rights aud liabilities arising were precisely
like those arising from the use OF the wood
and metals that is, they became entitled TO
be allowed its cost in accounting for the prof
its. The patented invention was the orators
property; he is entitled to the profits of the
use the defendants made of it, which was the
difference between cost and yield Rubber
Co. VS.. Goodyear . Wall 7SS The tuning
cost nothing but the labor and skill of the
tuner, and for that the Master has allowed.
The sets of reeds are arranged for making
music by being tuned in any mode open TO
use, and the defendants are not entitled to
have the profits of the partial set governed
by what it would have brought independent
ly of this kind of tuning any more than of
any other; nor any more than they are en-
titled to have them reckoned at what it would
have brought independently of the air to OPP
crate the reeds or of the principles of music
by which the instruments could be played,
except what this kind of tuning might have
cost more than those would This case is
very different from Mowry VS. Whitney, II
Wall. G20, relied upon by the defendants.
There the patent was for process of making
wheels, which as product were not covered
by the patent. The defendants were charged
by the Circuit Court with the whole profits
on the wheels instead of the profits of the
savings by the patented process This was
held to be wrong and the plaintiff there was
required to distinguish the profits due to the
patented process from those received on the
whole wheel, before he could recover them
What was required to be done there has al
ready been done here. Large profits were
made by these defendants on these organs.
aside from those on the partial sets, for
which there has apparently been no attempt
to charge them The Master has carefully
distinguished the profits arising directly from
the partial set from the rest He has ascer-
tanned the difference between what il cost the
defendants to make and sell that, and what
it brought them. This was the profit on that
thing. The fact that the defendants might
have employed a horizontal partial set to
nearly or quite the same profit does not vary
this aspect Of the case. The partial set ar
ranged in a reed-board, according TO the ora.
tors patent, was thing by itself, different
from anything else, and there was no exact
equivalent for it. 1t was that upon which
they made the profit charged. II they had
employed the horizontal set instead of it,
they would not have trespassed upon the or
ator's rights; but they did not take that
course. If they knew then, as they know
now that the horizontal set would answer
their purpose nearly or quite as well, they
preferred to take the orators invention
Having done that they are liable to account
to him for what they gained by that taking
without reference to what they might have
gained if they had taken something else.
Elizabeth VS., Pavement Co., % U. s. 1876.
The difficulties about this subject consist in
ascertaining with certainty, what profits are
due to the infringement In Mowry vs.. Whit
ney, where a process only was infringed,
what was made by the process only was al
lowed. In Elizabeth VS.. Pavement Co.,
where the product was infringed, the profits
on the product were allowed. Here the par
tial sets are products, the profits upon them
are ascertained, and these profits must be al
lowed.
As NO prOfits accrued 10 tina defendants IN