53 F. 257 | 9th Cir. | 1892
Defendant in error instituted suit in the circuit court of the United States for the northern district of
The allegations in the declaration are:
“That said invention related to an improved device for desiccating fruit and other substances by means of artificial heal, and consisted, among_ other things, of a novel means of moving the trays on which the fruit is held within the drying chambers from the time it is admitted until it is removed therefrom, as will more fully appear from the letters patent hereinafter set out, to which reference is here made for a fuller description. ”
The charge is that defendant—
“Has wrongfully made, used, and sold large numbers of machines containing and embracing the invention described and claimed in and by the said letters patent. ” .
Turning to the letters patent, we find what are the inventions claimed by Cassidy. He says:
“Hirst. My invention relates toan improved device for desiccating fruit and other substances by means of artificial heat, and it consists, first, of anovel method of utilizing the heat which passes through flues from the furnace, and by leading these flues around the chamber within suitable pipes or cases, and making certain openings from these cases into the chamber, I am enabled to admit heated air from any or all sides and at different heights between the layers of fruit, while heat is also admitted from the bottom of the chamber or not, as may be desired.
“Second. My invention also consists in a novel means of moving the fruit within the chamber from the time it is admitted until it is again removed.”
In describing this second invention the applicant says:
“In order to elevate and support the trays of fruit after they are introduced, I have employed a combination of movable and stationary standards upon two opposite sides of the chamber, and these standards are provided with spring catches, which can be forced inward to allow a tray to pass up, but will return to their places after it passes, and prevent its going down.”
Plaintiff in error says in his brief:
“The patent was for alleged improvements in a drying apparatus.”
Defendant in error says in his brief:
“The patent in suit was granted to John W. Cassidy, * ® * and covers improvements in drying apparatus used for drying fruits,"vegetables, and other products. ”
It contains two claims. Infringement is charged of the second only.
Again,—
“The device covered by the first claim is a system of flues for evenly distributing the heat. No infringement thereof is charged, and it may be dismissed from consideration.” '
Again,—
“There is no resemblance whatever between the Alden and Cassidy machines, further than the fact that they are both stack dryers. But the Cassidy claim is not for a stack dryer. It is for a peculiar mechanism to lift the trays of a stack dryer. ”
Prom the foregoing it would appear that there was no contention but that defendant in error’s patent was for improvements in fruit dryers, and not for a fruit dryer. In the subsequent consideration of this case this may become important.
Plaintiff in error urges that the circuit- court committed an error in allowing Cassidy to give an opinion as to the relative costs between
The next error claimed by plai ntiff in error to have been committed by the circuit court is in its refuting to instruct the jury to find a verdict for defendant, when the plaintiff in the court below had rested Ms case upon the evidence then presented. The ground upon which it is urged that the court should have given this instruction seems to be that it appeared from the evidence that there was no novelty in plaintiff’s patent; that it was superseded by the Alden machine; that Cassidy had substituted in Ms patent only mechanical equivalents for those devices used in the Alden. Plaintiff introduced Ms patent in evidence. This was prima facie proof of the validity of his patent. In the case of Mitchell v. Tilghman, 19 Wall. 390, the supreme court said:
“The patent, when introduced in evidence by the complaining party in a suit for infringement, affords a prima facie presumption that the patentee is the original and first inventor of what is therein describí <1 and claimed as his invention. ”
In Walker on Patents the rule is expressed that the patent, when introduced in evidence, is prima facie proof of its own validity, unless it appears on its face not to be such a document as the statute prescribes. Walk. Pat. § 491. When letters patent are introduced in evidence the burden is cast upon the defendant to show that they are not good, or that the patentee is not the first inventor. Blanchard v. Putnam, 8 Wall. 420; Seymour v. Osborne, 11 Wall. 516-538. The question of anticipation or wani of invention is a matter of defense. The question of anticipation cannot he raised without notice specifying the anticipating invention. Section 4920, Rev. St. The ques
“It is undoubtedly true that a case may be presented in which the refusal to direct a verdict for the defendant at the close of plaintiff’s testimony will be good ground.for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony, and introduces none in his own behalf, but if he goes on with his defense, and puts in testimony of his own, and the jury under proper instructions finds against him on the whole evidence, the judgment cannot be reversed, in the absence of the defendant’s testimony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked. ”
In tbe case of Insurance Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. Rep. 685, the supreme court held that, under such circumstances, the ruling of the court “cannot be assigned as error because the defendant at the time of requesting such an instruction had not rested its case.” This doctrine was affirmed in Robertson v. Perkins, 129 U. S. 233, 9 Sup. Ct. Rep. 279. Under these controlling authorities, the contention of defendant in error on this point must be sustained.
Plaintiff in error urges that under the evidence it was wrong to have left it to the jury to determine whether or not gravity catches were mechanical equivalents for spring catches, for the reason that defendant in error narrowed his claim by an amendment of his application for a patent so as to, leave out of his claim for spring or other catches the words “other catches.” It does appear from the record that defendant in error, in his application for a patent, first claimed “spring or other catches,” and then amended to “spring catches.” This was done by direction of the patent office, on the ground that the application was not proper in form. There is a decision of the supreme court that urges that such applications should
The court in Ms instructions submitted to the jury the question as to whether there was invention in the paient, and as to whether defendant in error was the first ini entor of tbe devices mentioned in Ms patent; and also tbe question is to whether gravity catches were the mechanical equivalent for spring catches known at the time oí the patentee’s application. These are all questions of fact, and in a law case should he submitted to (he jury under proper instructions as to the law' applicable to the same. This, we think, was properly done by the court. Blaintiff has assigned and claimed many errors as committed by the court in regard to the refusal to instruct as requested by it, and in giving cei tain instructions to tbe jury. Considering the charge as a whole, we think, upon the matters above stated, it ivas correct and sufficient. B uder these circumstances, we think it a prod i;less expenditure of time to consider and review in this opinion all of the alleged errors.
The plaintiff in error, upon another issue not above stated, namely, upon the question of damages, asked the court to instruct the jury that, under (.he evidence presented, the plaintiff could not recover more than nominal damages, if any. As stated before, defendant in error claimed two improvements in fruit dryers. He sued for an infringement of but one of these claims. His claim for damages cannot be broader than for the infringement he claims. In other words, he cannot claim damages for anything more than this one device. He is injured ouly to the extent of the use of that part of his patent which has been infringed. The evidence as to damages consisted of evidence of a license fee which he had fixed for both of Ms devices, and evidence of the profit to be made in manufacturing fruit dryers containing both of these improvements, and also certain unpatented features. The authorities a,re full upon tbe point that a party cannot recover as damages the prolii s to be derived from the manufacture of the whole of a machine, when only a portion of the same contains a patented feature. Garretson v. Clark, 111 U. S. 120, 4 Sup. Ct. Rep. 291; Dobson v. Carpet Co., 114 U. S. 440, 5 Sup. Ct. Rep. 945; Philp v. Nock, 17 Wall. 460. The burden of proving damages for the in