95 F. 991 | U.S. Circuit Court for the District of Southern Ohio | 1899
This is a suit to enjoin the infringement of the second claim of letters patent Ao. 371,8W>, to Ritter, for an improvement in paper boxes. The patent has expired, and the case now only involves a question of damages. .Judge Sage held that the second claim was valid, and that it was infringed by certain boxes manufactured by the defendant. The ease was then referred to the special master to ascertain and state the number of boxes made, the number used, and the number sold by the said defendant company
“And whereas, it is contended for the complainant that the accounting should be for the profits resulting to the defendant company from the manufacture, use, or sale of said paper boxes, and it is contended, on the other hand, for the defendant, that the accounting should he limited to the profits resulting to the defendant from the new element covered by said second claim, the court reserves all questions that may arise upon said contentions until the coming in of the master’s report, hut directs that the master receive testimony relevant to each of said contentions, and that he report upon said testimony in the alternative.”
For reasons wbicb appear in an opinion already filed in tbis case (91 Fed. 822), tbe reference to tbe master was revoked, and the question of damages submitted to tbe court on tbe evidence already produced before tbe master. By direction of the court and tbe master, tbe defendant prepared a statement showing tbe profits, as it claimed them to be, derived from tbe sale of tbe boxes found by tbe court to be infringements. Tbe amount of profits admitted was $4,718.81 on 915,652 infringing boxes. I am not able, for lack of time, to make a full, detailed statement of tbe reasons for reaching tbe conclusions which I have in tbe case. I have examined all tbe evidence, and read with care all tbe briefs. The amount of boxes sold is shown by defendant’s books to be 889,172. Tbe defendant’s account of gross sales shows that tbe selling price thereof aggregated $48,606.04, from wbicb must be deducted bad debts, amounting to $3'56.20; making tbe gross receipts $48,249.84. Tbis is admitted by complainant to be substantially correct. From tbis are to be deducted — First, tbe cost of material; second, factory cost, — labor, etc.; and, third, tbe percentage of tbe general expenses of tbe defendant’s business properly attributable to tbe manufacture and sale of tbe boxes. We shall consider these items in their order.
Tbe defendant, in its account, credited itself with $29,965.78 as cost of material. Tbe complainant attacks tbis item as excessive, and I find that tbe attack is successful;- that from the evidence as to tbe size of tbe boxes, tbe amount of material used for each box, and tbe cost of material, and making 5 per cent, allowance for wastage, it is entirely possible mathematically to calculate tbe cost of tbe total material used during tbe three years; 1889, 1890, and part of 1892. Tbe defendant’s statement is merely an estimate.. Tbe complainant’s-statement is based upon the books, and upon tbe evidence of one Bell, a bookkeeper and stockholder of tbe defendant, who was very familiar with tbe prices and details of defendant’s business. It would serve no useful purpose to state in detail tbe calculations, but it suffices to say that, owing to an error in tbe estimate of defendant’s account in tbe number of boxes per ton of material and in tbe price per ton of material, tbe cost of material, instead of being $29,967.50, should be $25,280.41. The brief of counsel for tbe complainant, taken with tbe evidence of Bell, quite satisfactorily demonstrates that there is tbis error in tbe defendant’s account.
Coming now to tbe second item of cost, to wit, factory cost, — labor,
The remaining item is percentage of general expenses. The aggregate sales of defendant’s entire business amounted to $444,128, and the aggregate sales of the infringing boxes amounted to $-48,-24-9.81. The ratio, therefore, of the total sates of infringing boxes to the total sales of the entire business is 10.8(5 per cent., and 1 shall assume that this proportion of the general expenses is to he credited to defendant in stating the account of profits on the infringing boxes, —an assumption, I may say in passing, which is exceedingly favorable to. the defendant, and which I make only because the complainant does not dispute it. The fact that the amount of capital and genera] expenses needed in carrying on the infringing box business is much less in proportion to the profit earned than in other departments of defendant’s business is apparent from the evidence, and would justify a different division of the general expenses. In the matter of general expenses the complainant concedes the correctness of the items for traveling expenses, rent, and drayage as set forth in the a (‘count of defendant. The complainant also concedes that the salaries and wages of those engaged, directly or indirectly, in the manufacture and sale of the boxes, as stated by defendant,' are also correct, to wit, $21,,345.15. The dispute arises with reference to the salaries of the general officers of the company, and in the amount of the interest and discount expenses, and in the miscellaneous expense account. The amount claimed by the defendant by way of interest and discount was $5,215.20. There are errors in calculation in this account amounting to $1,071.35. These errors are in favor of the defendant. In addition to this, there is included in this account $558.74 interest on dividends to Laubach, Iddings, and Shaw, stockholders. It seems to me that interest on dividends is not a charge which can be made in a suit, for infringement in favor of infringers. The amount, therefore, to be credited to the defendant on account of interest and discount, instead of §5,215.20, is $3,585.11, a reduction of $1,630.09. Another item for which defendant asks credit-under general expenses is insurance, amounting to $1,752. This is an improper item, and should be disallowed. Steam Cutter Co. v. Windsor Mfg. Co., 22 Fed. Cas. 1166; Winchester Repeating Arms Co. v. American Buckle & Cartridge Co., 62 Fed. 279, 280.
It is contended on behalf of the defendant that the' profits of the sale of the boxes were only partially due to the patented invention of the defendant, and that it was the duty of the complainant, under-the case of Mosher v. Joyce, 6 U. S. App. 107, 2 C. C. A. 322, and 51 Fed. 441, to show how much of the profit was due to the patented invention, and, in default thereof, to be content with nominal damages. The principle of law relied on cannot be questioned, but the' difficulty in this case is that all the profits from the sale of these-boxes were due to the invention described in the patent of the com
As the records have been submitted to the court, the binding effect of the New York adjudication is plain to me. I shall give leave to the complainant, if it chooses to do so, to file as part of the record and the evidence authenticated copies of the pleadings of the New York suit and the report of the master. From the pleadings and the
Interest will be allowed on the amount found due from January 1, 1893. The defendant had full notice of complainant’s rights, and chose deliberately to run the chances of the validity of the patent. I see no reason, therefore, for not including this usual element of damages in the recovery.