237 F. 893 | N.D. Ill. | 1916
The widespread infringement following the Goodyear decisions of the.Ohio Court of Appeals of May 6,
“Where two or more parties are concerned in the damage, and they each acted entirely independently of one another, they are not jointly liable, hut each is liable for the damage he himself caused.” 1 Sedg. Dam. (9th Ed.) § 36a.
Illustrations of the principle given by the author are injuries by flow-age, where part of the damage was caused by one defendant’s obstruction and part by another, and trespasses by dogs or cattle of different ■owners. The same subject is discussed in Sutherland on Damages (3d Ed.) § 141, citing the same and other decisions.
Applying this rule to these cases, I think that, though the rubber tire was found by the master to constitute 90 per centum of the cost of the three patent elements (tire, channel, and wire), yet as the patent was upon a vehicle wheel, and as the licenses gave the right to make this wheel, and also included the right to use tire-applying machinery, the design patent, the right to buy tires, channel, and wire from the licensor at cost, and particularly because it is manifest from the whole situation that plaintiffs would at any time have been glad to malee a license to each of the defendants on a five cent royalty; the master’s reports recommending five cents as a reasonable royalty should be approved.
The agreement of August 28, 1903, called the pooling agreement, should be entirely ignored upon the question of reasonable royalty, because its purpose was not to fix price's, but to secure a combination of rubber manufacturers.
As I understand the rule governing the .right of a licensee to sue in his own name for infringement, it is settled by the Waterman Foun
As to the argument that defendants sold rubber tire for repairs to persons having a lawful right to make and sell the patented wheel, and that this could not be contributory infringement, it is sufficient to say that the proofs afford no basis for any exception to the master’s report in this respect.
The reports of the master in each case should be approved, and all objections and exceptions thereto overruled.