71 F. 518 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1895
This is a suit upon letters patent No. 23,318, dated May 29, 1894, to John C. Miller, for a design for a slab for table tops. Their validity is not attacked. The bill alleges that “all said slabs for table tops made and sold” by, for, or under the owner of the patent, were marked as required by law. The answer denies this, and the affirmative of the issue thus raised has not been maintained. The complainant relies upon the testimony of John C. Miller, but it falls short of sustaining the averment of the bill, or proving compliance with the statute. The necessary averment is that the articles made under the patent were properly marked, but the only evidence is of marking “as a rule.” This is not merely insufficient to establish the plaintiff’s allegation. It impliedly refutes it, for the inference naturally deducible from testimony that a particular course has been pursued, as a rule, is that such course has not been uniform and persistent. The burden of proof was upon the plaintiff, and I am constrained to hold that he has failed to discharge it. There is nothing in the record to warrant belief that the defendant infringed after particular notice had been given to it, and complainant’s counsel has not very seriously contended that it did. The consequence is that there can be no recovery of damages, for “one of these two things — marking the articles, or notice to the infringers — is made by the statute a prerequisite to the patentee’s right to recover damages against them.” Dunlap v. Schofield, 152 U. S. 248, 14 Sup. Ct. 576; Coupe v. Royer, 155 U. S. 584, 15 Sup. Ct. 199; Monroe v. Anderson, 7 C. C. A. 272, 58 Fed. 401; Traver v. Brown, 62 Fed. 935; Manufacturing Co. v. Bardsley, 66 Fed. 765.
A decree for the complainant for injunction only will he entered.