281 F. 1 | 3rd Cir. | 1922
In a suit on the De Laski & Thropp patent No. 1,011,450, for a machine for wrapping automobile tires'before vulcanization, instituted by the patentee against an infringing maker, this court affirmed a decree of the District Court holding the patent valid and infringed. De Laski & Thropp Circular Woven Tire Co. v. William R. Thropp & Sons Co. (D. C.) 218 Fed. 458, Id. (C. C. A.) 226 Fed. 941. The present suit was brought by the patentee against the user of the machines which in the first suit were, found to infringe the patent. The District Court again held the patent valid and infringed. 239 Fed. 139. The case then went to an accounting. The special master awarded the plaintiff damages but declined to award it profits. On exceptions the report of the master was affirmed. Both parties appealed; the defendant from the award of damages; the plaintiff from the refusal of the court to award profits and also from its refusal to treble the damages.
The machine of the patent (described in the opinions of the original case), while an unitary structure, is readily separable into two parts,— a stand or undersiructure on which tires are wrapped when being rotated and a superstructure embodying rolls which compress the tires in their rotation. The latter constitutes the essential feature of the invention. When the superstructure is removed or the pressure rolls suspended, the understructure can be used (as, indeed, it was used by the defendant) for wrapping tires. Wrapping by the undersiructure alone is, however, not so satisfactory. As the patent is for a combination comprising both structures, this part of the machine alone is not the invention of the patent. For its use by the defendant, the plaintiff neither charges infringement nor claims profits. Another machine, without pressure rolls, known as the “Williams” machine, was also used by the defendant for wrapping tires. These machines the master and the court regarded as the proper standard of comparison. The plaintiff, however, insisted, and still insists, that original hand wrapping is the proper standard. As there is ample evidence to sustain the finding of the master that the Thropp machine without the pressure rolls and the Williams machine were, through the periods of infringement, not only available to the defendant but were used by it in wrapping' tires and thus became the proper standard of comparison—evidence equally persuasive to the trial court and to this court—we can not discover clear error or mistake in the finding. Columbia Wire Co. v. Kokomo Steel & Wire Co., 194 Fed. 110, 114 C. C. A. 186; American Co. v. Snyder (D. C.) 241 Fed. 274.
While this is the general rule, it, admittedly, is open to exceptions, Expanded Metal Co. v. General Fireproofing Co. (D. C.) 247 Fed. 899, 904, and is to be applied to the peculiar facts and circumstances which control each case, remembering always that pecuniary loss arising from infringement can, in any event, be determined only through a reasonable approximation, Lee v. Malleable (D. C.) 247 Fed. 795; Clark v. Schieble, 248 Fed. 276, 160 C. C. A. 354. And we think the terms of the agreements here in question bring this case within one of the exceptions.
We are of opinion, therefore, that the rates in the license agreements
We find nothing in this lengthy litigation to justify the plaintiff’s claim for an increase of damages over the award of the master.
The decree below is in all respects affirmed, the costs of these cross-appeals to be borne equally by the parties.