171 F. 438 | U.S. Circuit Court for the District of Western New York | 1909
The complete -and able report of the master, who has awarded the complainant profits in the sum of $8,-016.39, sets forth the facts, and also contains such a full discussion of the various questions of law involved that perhaps it is entirely unnecessary for me to add anything thereto; but I will nevertheless notice briefly several of the important exceptions.
Regarding the exceptions filed by the complainant, it is claimed that the master was in error in not allowing an item of $71.12 for paste. A careful reading of the report convinces me that in computing the cost of filling the bags the master considered all elements in relation to which the testimony offered was satisfactory. The remaining exceptions relate to the failure of the master to award damages as well as profits. The true measure of damages would be an established license fee or royalty. Birdsall v. Coolidge, 93 U. S. 64, 23 L. Ed. 802. The master was of the opinion that the complainant had failed to prove a uniform license fee upon labor such as the patented machine was able to perform, and as there was competent evidence merely of a single license fee he decided on the authority of Adams v. Bellaire Stamping Co. (C. C.) 28 Fed. 360, and Walker on Patents, § 557, that no royalty or uniform license fee had been established. No sufficient reason is shown why this finding should be disturbed.
The exceptions filed by the defendant and by complainant are overruled. The fees of the master, whose report is confirmed, may in the usual way be paid by complainant, and be taxed against the defeated defendant.