Consolidated Rubber Tire Co. v. Diamond Rubber Co. of New York, 232 F. 475

Consolidated Rubber Tire Co. v. Diamond Rubber Co. of New York

232 F. 475 | 2d Cir. | 1916

COXE, Circuit Judge

(after stating the facts as above). [1] Few patents have been subjected to such violent and persistent attacks as the Grant patent in suit. For 18 years it has been discussed by the Supreme Court, Circuit Courts of Appeal and many District Courts and the efficacy and value of the invention have been, of late years at least, almost universally recognized. Naturally the owners of the patent have been put to great expense and annoyance by this bitter and persistent attack upon their property. In such circumstances the courts should not be zealous to deprive the plaintiffs of the fruits of their victory. If doubts arise, they should be resolved against those who have deliberately infringed the patent, even after the Supreme Court had told them it was valid. Without going further into the merits, it suffices to say that their conduct has not been such as to commend them to the court. A large part of the difficulty in reaching the exact facts has been due to the defendant’s conduct. We think the finding of the master that there was a minimum license fee of 5 cents a pound established during the infringement period is amply sustained by the proof. It certainly cannot be argued that such a sum was exorbitant and it seems to us entirely reasonable. If the defendant did not like the price it should not have infringed.

[2] The law does not require that all of the license fees should be for exactly the same amount at all times. Sulphite Co. v. De Grasse, 193 Fed. 653, 113 C. C. A. 521; Packet Co. v. Sickles, 86 U. S. (19 Wall.) 611, 22 L. Ed. 203. The principal questions in controversy have been so thoroughly covered by the master and the District Judge that we deem it unnecessary to add further to the report and the opinion. An established minimum license fee of 5 cents per pound has been proved and we see no reason why this license fee should not be regarded as a reasonable royalty also. In any view a correct result has been reached.

The decree is affirmed with costs.