81 F. 863 | 9th Cir. | 1897
The defendant in error, James McNamara, brought this action against the city of Seatile to recover damages for the infringement of letters patent No. o2i,7G7, centering' for tunnels, issued to Janies McNamara "on June 19, 1894. It was shown on the trial that the inventor, while employed as a masonry foreman in constructing sewer tunnels for the city of i.Vaitle, conceived the form of centering of tunnels which was afterwards em
“The jury are instructed upon the measure of damages that in this case the proper method of assessing plaintiff’s damages, if you find that he is entitled to recover any, is for you to ascertain, and determine what would have been a reasonable royalty for the defendant to have paid for the use of the invention at so much for each one made and used; and in determining this point, if there was an established royalty, that sum would have been the measure of damages; but in this class of cases, where no royalty has been established, there are, necessarily, no data from which the value of the royalty can be calculated with mathematical certainty, and damages, like damages in many other classes of cases, are calculable upon such evidence as it is in the nature of the case to produce. The amount of damages it is the province of the jury to determine, taking into consideration the whole evidence.”
Tbe latter portion of this charge embodies the views which were expressed by this court in the case of Packing Co. v. Cassiday, 12 C. C. A. 316, 64 Fed. 585, in which we approved the doctrine declared in section 563 of Walker on Patents, which is thus expressed:
“Where damages cannot be assessed upon the basis of a royalty, nor on that of lost sales, nor on that of hurtful competition, the proper method of assessing them is to ascertain what would have been a reasonable royalty for the infringer to have paid.”
Since that decision was rendered, the supreme court, in the case of Coupe v. Royer, 155 U. S. 565, 15 Sup. Ct. 199, reversing Royer v. Coupe, 29 Fed. 371, has announced the doctrine that in an action at law .to recover damages for the infringement of . letters patent the damages are measured only by the extent of the plaintiff’s loss as proved by the evidence. The court said:
“At law the plaintiff is entitled to recover as damages compensation for the pecuniary loss he has suffered from the infringement, without regard to the question whether the defendant has gained or lost by his unlawful acts. * * * It is evident, therefore, that the learned judge applied the wrong standard in instructing the jury that they should find what, the defendants might be shown to have gained from the use of the patented invention. * * * Upon this state of facts the evidence disclosing the existence of no license fee, no impairment of the plaintiff’s market, — in short, no damages of any kind,— we think the court should have instructed the jury, if they found for the plaintiff at all, to find nominal damages only.”
It is true that in Coupe v. Royer there was no evidence tending to show what would have been a reasonable royalty for the use of the plaintiff’s device, the evidence upon that branch of the case being confined to proof of the advantage which the defendant would gain