51 F. 441
6th Cir.
1892
Jackson, Circuit Judge.

There was no error in the holding of the circuit court that complainant’s invention and patents were for improvements’only, and not for an entirely new machine or lifting jack. The patented improvement made jacks on which it was used more efficient, but did not operate to make an entirely new' machine, nor did it supersede-all other jacks.

We are clearly of the opinion that the order of reference did not direct the master to find and report the profits made by defendants on the entire jack manufactured and sold by them. In the absence of proof *444showing that the defendants’ infringing jack derived its whole commercial value from the use of the patented improvement, the court could not properly have made such an order of reference as appellant claims was made. This is settled by Littlefield v. Perry, 21 Wall. 205, 228, 229. The reference was ordered in substantial conformity with that in Dobson v. Dornan, 118 U. S. 15, 16, 6 Sup. Ct. Rep. 946, and directed an account of the profits from the infringement. But, if that were not so, still, upon the coming in of the report, the court upon the final hearing had full authority to vary or depart from the interlocutory decree on the question of profits.

There is nothing in the record to show that the court below erred in refusing to recommit the cause to the- master for the purpose of taking testimony upon which to make an apportionment of the profits. It was claimed by respondents, pending the reference, that complainant could only be allowed the profits which defendants have realized as the result or consequence of the wrongful use-of the patented improvement. This involved the apportionment of the profits. The complainant, being thus informed of what the defendants would contend for, cannot well claim that he has been taken by surprise. No accident, inadvertence, or mistake is shown as a ground for the recommittal of the cause. The complainant, after notice of defendants’ position and claim, neglected and omitted to introduce any testimony on the point. Nor is his motion to refer the account back to the master supported by any affidavit or showing that he can hereafter produce testimony that will enable either the master or the court to ascertain the profits attributable to his patented improvement. In respect to such matters as the recommittal of accounts or reference back to a master, the chancellor exercises a very large discretion, and is not to be put in error in his action upon such motions, except upon very clear showing of -merits and in the absence of negligence. Where litigants have an opportunity of presenting their case fully, and elect to proceed on a certain theory as to their rights, which is subsequently not sustained, and then move to reopen the cause for proof upon another theory, some good showing should be presented to support such motion. No special circumstances are disclosed in the present case, which satisfy us that the court below erred in refusing to refer the cause back to the master for proof on the apportionment of the profits.

The remaining and principal question presented by the appeal relates to the proper measure of profits which complainant was entitled to recover. .Did the circuit court err in confining and limiting his profits to such as resulted from or were attributable to his patented improvement, and, in the absence-of proof on that subject, awarding only nominal damages, or was complainant entitled to the entire profits on all the jacks manufactured and sold by defendants, which embodied his invention? The rule for the determination of this question is well settled by the supreme court. It is so clearly stated in Garretson v. Clark, 111 U. S. 120, 121, 4 Sup. Ct. Rep. 291, as to render any discussion of or reference to earlier authorities on the subject unnecessary. In that case *445the court say that '“when a patent is for an improvement, and not for an entirely new machine or contrivance, the patentee must show in what particulars his improvement has added to the usefulness of the machine or contrivance. He must separate its results distinctly from those of the other parts, so that the benefits derived from it may be distinctly seen and appreciated. The rule on this head is aptly stated by Mr. Justice Blatchfoed in the court below. ‘The patentee,’ he says, ‘must in every case give evidence tending to separate or apportion the defendant’s profits and the patentee’s damages between the patented feature and the unpatented features, and such evidence must be reliable and tangible, and not conjectural or speculative; or he must show, by equally reliable and satisfactory evidence, that the profits and damages are to be calculated on the whole machine, for the reason that the entire value of the whole machine, as a marketable article, is properly and legally attributable to the patented feature.’”

The rule thus laid down is reaffirmed in Dobson v. Carpet Co., 114 U. S. 444, 445, 5 Sup. Ct. Rep. 945, and later decisions. Has complainant complied with either branch of the rule, so as to entitle himself to anything more than nominal damages? It is clearly shown, and not disputed, that he made no effort and produced no evidence, either before or after the reference, “tending to separate or apportion the defendants’ profits and the patentee’s damages between the patented features and the unpatented features” of the infringing jacks. His claim below and his contention here is that his ease falls within the second branch of the rule announced, in that his profits and damages should be calculated on the whole machine, for the reason that the entire value of the whole infringing machine as a marketable article was properly and legally attributable to the patented improvement. If he has established this by reliable and satisfactory evidence, his case falls within the exception recognized and applied in Manufacturing Co. v. Cowing, 105 U. S. 253; Root v. Railway Co., Id. 189; Hurlbut v. Schillinger, 130 U. S. 456, 471, 472, 9 Sup. Ct. Rep. 584; and Crosby, etc., Valve Co. v. Consolidated Safety Valve Co., 141 U. S. 454, 12 Sup. Ct. Rep. 49,—whore the patentee was given the entire profits, because it was shown that the infringing machine or device had derived its entire commercial value from the patented feature or improvement. Thus, in Hurlbut v. Schillinger, 130 U. S. 456, 9 Sup. Ct. Rep. 584, which appellant relies on, it is said by the court: “It clearly appears that the defendant’s concrete flagging derived its entire value from the use of the plaintiff’s invention, and that if it had not been laid in that way it would not have been laid at all.” So in Crosby, etc., Volve Co. v. Consolidated Safety Valve Co., 141 U. S. 454, 12 Sup. Ct. Rep. 49, it was established by the patentee to the satisfaction of the court that the whole commercial value of the infringing article was derived from the use of the patented feature, and for that reason the court awarded the entire profits. Has complainant brought his case within the rule established by these authorities? We are clearly of the opinion that he has not. He has wholly failed to show, as the burden rested upon him to establish, that the commercial value of the infringing jack made and sold by defendants *446was derived from the use of the patented feature. On the contrary, the proof on this subject, so far as there is anj- relating to the matter, tends strongly in the other direction. Having failed to prove by reliable and tangible evidence that the entire value of the infringing jack, as a marketable article, was properly and legally attributable to his patented feature, the court cannot indulge in conjecture or speculation in order to give him the entire profits made by the defendants. It was open to complainant to show that defendants had received an increased price for their infringing jacks, which was fairly attributable to his patented improvement, or that the infringing jacks derived their entire-value, as marketable articles, from his invention. He has failed to do either, and we are clearly of the opinion that the decree below Avas therefore correct, and should be affirmed, with costs of appeal, and it is accordingly so ordered and adjudged.