Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1880-04-16

a part of the organs made and disposed Of by
them containing the orators improvement,
none can be decreed to the orator on account
of that infringement. 1t is what the defend
ants did gain, not what they might have
gained, that they are accountable for by way
of profits. Livingston vs.. Woodwork, 10
How. $40 Elizabeth VS.. Pavement Co. ~
U. S. 1876. II such profits when recovered
will not make the patentee whole he must re-
sort to his remedies for damages. The stat
ute provides that in cases like this an account
Of the damages may be taken and they be de-
creed to the orator. Rev Stat Z. S. Sec.
1921. But they must be proved to the Mas
ter as in actions at law they must be to the
jury. This case furnishes no evidence from
which such damages could be found with any
satisfactory or sufficient degree Of exactness.
II does not at all appear that the orator
would have supplied organs in place of these
on which no profit was made for the partial
set If the defendants had not disposed of
them without profit and without some such
proof the damages could not be found.
Buesk VS.. Imhaeuser, II Blatchf 49, Neither
does the evidence as to other damages afford
any sufficient basis from which the Master
would be warranted in finding any. 1t did
not appear that the defendants were supply
ing the same markets or customers as the ora
tor to any definite extent New York vs..
Ransom, % How. 81 Ingersol vs. Mus
grove II Blatch. al
According to these views the defendants
are liable to account to the orator for the
profits actually received by them from the
use of his invention after the time to which
the patent was ante-dated, and not for any
other supposed profits or damages. The act
ual cost of making the partial sets containing
the invention from which profits were receiv-
4 : "a "a ~ A 4 ii
ceived for them was 500, 9Is. 2S and the
actual profit Oh account of them was Sl49-
O39.OO.
These profits came TO the defendants
hands in money, and the amount appeared
upon their books 1t was received for an in
tringement upon the orators rights and they
became trustees of it, although unwilling, for
him to whom it belonged They knew OF
the patent ih suit, although they supposed
that another patent to the plaintiff, which
they owned, covered the right to make this
partial set Such an infringement was treat
ed as being deliberate and intentional by
Woodruff, J. in Russell VS.. Place, .
Blatch. l7I In Littlefeld vs. Perry. u
Wall. 20j, it is intimated that interest may be
allowed upon profits actually realized under
such circumstances in order to give COM
plete indemnity for the wrong. On princi-
pie money so received ought to bear interest
while wrongfuly detained. Ekins VS.. East
India Go. 7. WINS. 39j People VS.. Gush-
eric, . Johns, II Wood vs. Robbins. II
Mass jOl Cram VS.. Thayer, Is VI 1872
Before the disclaimer however. this money
WAS not wrongfuly detained Without the
disclaimer as has been held in this case. the
orator could not have decree. The defend.
ants are to be suppossd'as having known that
he had right to dsclaim, and have decree
but they could not know that he would dis
claim, and therefore could not know that
they would have the money to pay over, and
could not be in default for not paying it until
that was done, and the evidence of it pro
duced. While the money so laid in their
hands they were not wrongfully OBTAINING IT,
and could not justly be charged with interest
upon It. Hubbard vs.. Charleston r. r. Co
II Met. ~. But after the disclaimer was
hled IN the patent Office. and proof Of it filed
IN this Court, and decree thereupon entered
that the defendants should account to the or
ator for the profits which this money in their
hands represented, they had full knowledge
OF the orator's right TO the money as those
rights are considered in this Court. and de-
tanned the money against his right and should
be charged with interest. upon it. Steam
Stone Cutter Co. VS.. Windsor Manufacturing
Co, Dist. Vt. May T. 1879 The proof
was filed and the decree entered on the same
day. 80 there is no question as to whether in
terest should begin 10 run from one date or
the other in this case.
The right of the orator to costs depepdg
wholly upon the provisions of the statute.
They are creature of statutes, and were not
recoverable at all at common law. This suit
could not have been maintained at all but for
the provisions Of Sec. 1922. Rev Stat, al
lowing disclaimer of what would otherwise
defeat the patent If the disclaimer is filed
before suit the case stands AS to costs like
any other case for infringement. But where
the disclaimer is not filed until after suit. al
though that may not prevent a decree or
Judgment for the plaintiff the statute is ex-
press that in every such case in which judg-
ment or decree shall be rendered for the
plantlh no costs shall be recovered The
provision Is not that no costs shall be recoy-
cred until after disclaimer but it is as extern
siye as the whole existence of the case and
prohibits the recovery OF any costs at all in
the case.
Other questions have been debated to some
extent, and considered, but they either re-
late TO questions of fact disposed of by the
Master upon warrantable evidence before
him, or are not controlling upon any decisive
feature of the case, and no further notice of
them is thought to be necessary.
1t follows that the orator is emitted to a de-
cree for the payment to him by the defend
ants of the sum of one hundred and forty
nine thousand and thirty-nine dollars with
interest thereon from the 9Th day of Deem
Der. 1875.
The foregoing decision embodies the con-
curing views of the Circuit Judge and the
District Judge before whom the case has
been heard
The exceptions are respectively overruled
and sustained accordingly the items relat-
ing to the twenty-niue organs on which no
profits were collected and forty-sx organs on
which none were charged are disallowed; the
residue OF the report is accepted and con
tirmed and decree thereupon ordered for
the payment of said sum with interest to this
9th day of April 1880 which amounts 10
~ ,912. a. making in the whole SlGl OH. 70
aud for execution thereof
Clerks Office L. S. Circuit Court. District
of Vermont
hereby certify that the above and foregoing
is true copy of the original now on file in
this Office
Gro f. JOHNSON, Deputy Clerk.
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Chanaing as "a ThcoIogIan.