164 F. 1005 | U.S. Circuit Court for the District of Connecticut | 1908
This is a patent suit which has had a checkered career in our courts, and has now reached the stage where, if the master’s report shall be accepted, a final decree will immediately follow.
In his report filed July 22, 1907, the master finds, “from the great mass of data produced by the defendant,” that it manufactured and sold 2,681% gross of infringing Apt Clippers. He also finds, “from the data furnished by defendant and from an analysis of the books of the complainant,” that $3,931 is a “fair and reasonable net profit per gross” on complainant’s clippers which would have been sold except for the infringing sales. A simple sum in arithemetic makes the total damages in this respect $10,540.95. This conclusion is reached by eliminating interest, but including taxes and 'insurance. He also finds that, “as a direct result of defendant’s competition, complainant was forced to reduce its price for the sale of the Gem Clippers,” and that because of said forced reduction it was further damaged $2,330.85.
The court has before it this plain report, unadorned, unembellished, and without complication, and yet the defendant, by its receiver, has filed 50 exceptions thereto. On the threshold1 of the argument upon the exceptions, the counsel for the receiver admits that the situation before the master made it impossible- for him to arrive at any conclusion as to the profits or losses made by the defendant on its infringing sales, and that the master heard the case after and upon a distinct concession by the receiver that “the plaintiff might recover the amount of profits which it would have made had it manufactured the goods sold by the defendant.” The master was then placed by the parties themselves where he had only two questions to decide: (1) How many infringing clippers did the defendant sell? (2) What net profit would have accrued to the plaintiff if it had sold an equal number of its own patented clippers? All exceptions, therefore, which relate to the matter of defendant’s losses or profits on the infringing sales are manifestly irrelevant, and must be overruled.
The other class o^ exceptions touch upon the master’s findings upon the net profits which plaintiff would have made if it had sold its own clippers to the customers who bought -the infringing clippers. The basic trouble with such exceptions is that they are irregular and without foundation to rest upon. The attention of the court is not directed to any testimony, taken by the master from which it can be determined that the master was mistaken in any of his inferences and conclusions. I am sure that I may say, without being charged with irreverence, that to me they appear to be “without form and void.” The evidence is not in fact before me, but if it were, no reference is made to ally portion of it, nor indeed to it as an entirety. Verily, darkness is upon the face of the deep. The brief used at the hearing cannot take the place of the exceptions. Sound equity practice would
I,et a decree be entered, with costs, fixing the damages at $12,871.80.