97 F. 331 | U.S. Circuit Court for the District of Southern Ohio | 1899
An opinion was filed in this cause July 10, 1899 (O. C.) 95 Fed. 991, finding the profits received by defendant from the sale of the infringing boxes to be $12,275.51. At the close of the opinion it was said:
“Interest will be allowed on the amount found due from January 1, 1893. The unlawful action of the defendant, in its willingness to run the chances of the validity of complainant’s patent, seems to have been deliberate. I see no reason, therefore, for not including this usual element of damages in the recovery.”
A petition for rehearing on the question has now been filed.
It was assumed in what was said in the original opinion that in the recovery of profits for the infringement the question of interest would resemble that of interest in a suit for money had and received, or at least that the court might exercise the same wide discretion intrusted to a jury, in estimating unliquidated damages'. Lincoln v. Claflin, 7 Wall. 132. The matter of interest was not the subject of discussion, and the cases were neither cited nor considered. - On this hearing many cases in the supreme court and the circuit courts have been presented and examined. They are summed up by Mr. Justice Gray in Tilghman v. Proctor, 125 U. S. 136, 160, 8 Sup. Ct. 906, as follows:
“The only exception of any Importance not disposed of or rendered immaterial by what has been already said is the exception of the plaintiff to the refusal of the master to allow interest on profits before the date of his report. If the question thus presented were a new one, it would require grave consideration. But by a uniform current of decisions of this court, beginning thirty years ago, the profits allowed in equity for the injury that a patentee has sustained by the infringement of his patent have been considered as a measure of unliquidated damages, which, as a general rule, and in the absence of special circumstances, do not bear interest until after their amount has been judicially ascertained; and the provision introduced in the patent act of 1870, regulating the subject of profits and damages, made no mention of interest, and has not been understood to affeet the rule as previously announced. Silsby v. Foote, 20 How. 378, 387; Mowry v. Whitney, 14 Wall. 620, 651; Littlefield v. Perry, 21 Wall. 205, 229; Act July 8, 1870, c. 230, § 55 (16 Stat. 206); Rev. St. § 4921; Parks v. Booth, 102 U. S. 96, 106; Root v. Railway Co., 105 U. S. 189, 198, 200, 204; Railroad Co. v. Turrill, 110 U. S. 301, 303, 4 Sup. Ct. 5.”
It seems to me, witb submission, that substantial grounds could be stated against this elimination of interest as a usual element of damage in the recovery of profits for infringement; but an examination of all the cases in the supreme court shows the greatest reluctance bn the part of that court to allow interest in a patent case before the master has liquidated the damages, and I have found no statement of the circumstances by that court in which it would be permitted, though there are vague intimations that there might .be circumstances justifying the allowance. I am constrained by the weight of this authority to hold that the present case is not so exceptional as to justify the imposition of interest from the date fixed in the opinion. While I think the evidence shows a deliberate willingness on the part of defendants in their infringement to take their chances of being mulcted in damages, I cannot say that their infringement ’was of the fraudulent and wanton character that seems to be necessary to justify the impo
