586
FEDERAL REPORTER.
. V.
THE KETCHUM HARVESTER 00. L
THE JomiSON HARVESTER liO. July 6,1881.)
(OVrcuit· DOUTt, N. 'D. ,New York.
LETTERS PATENT-MANUFACTURE FOR SALE AmWAD-INFRINGEMENT·
. Every manufacturefo,r sale aQroad, followed by actual sale, of a machine on which an American patent has been issued, is an infringement of the American patentee's rights of property and exclusive use.
Spencer Clinton, for plaintill. Ward Hunt,. Jr.; for defendant. BLATCHFORD, O. J. . I think the prOVISlOns of the decree. as to license fees,in connection with the testimony, are sufficient to authorize the finding of a license ·fee of five dollars for each machine with a concave wheel made and sold in the United States, and one of $2.50 for each machine with a concave wheel made in the United States for sale abroad and sold abroad. A-Ithough the patent could give no protection abroad in the sale of machines abroad, it gave protection in the United States in making machines III the United States for sale abroad. The patent prevented all persons but the patentee from making in the United States. The privilege of mak·
KETCHUM HARVESTER CO. V. JOHNSON. HARVESTER CO.
587
ing in the United States, for sale abroad, was valuable, as was shown by the fact that the defendant made in the United States for sale abroad. The plaintiff was entitled to that privilege exclusively, and to damages for its violation. It may be that in the case of manu{l!octure in the United States, without sale anywhere, nominal damages only are to be allowed; but where such manufacture is followed by sale abroad, it cannot be said that the damages ought to be only nominal. It is true that the sale is the fruition, and gives the profit, and that the sale is abroad, and the patent does not cover the sale abroad. But the unlawful act of making is made hurtful by a sale, wherever made. The legal damages for making and selling here may be, in some cases, greater than the legal damages for making here and selling abroad; but to deprive the patentee of all damages for unlawful making here, because the article is sold abroad, is to deprive him of part of what his secures to him. The allowance on the conc&ve wheel machines should be for 1,767 machines, at $5 apiece, being $8,835 ; and' for 4,484 machines sold abroad, at $2.50 apiece, being $11,210. The allowance under the shoe patent should be 98 machines, at' $1.50 apiece, being $147, and for 89, machines soIa abroad, at, 75 cents Ilpiece, being $06.75. ..' The allowance 'to the plaintiff of only one-half, on machines sold abroad, of the fee on machines sold here, is very' libel;ai to the defendant. It is all the plaintiff asks, and is not to be regardec;'t.as establishing the rule that the samedamltges'wouldnot be proper for machines sold abroad and for machines BOld here both. being unlawfully made. The act of making, in either case, is nec'essary to enable the sale to be made; and, the making being lilllawfu1, it is no injustice to a,ttribute to the unlawful act all the Qbnsequences which flow from it. The defendant's exceptions are disallowed, with costs, and the plaintiff's are allowed, with costs, and a decree will be entered for the plaintiff for $20,258.75. .
588
W. & E. T.
FITCH V.
(Uircuit Court, D. Oonnecticut. August 6, 1881.) 1. PATENT No. 47,764-SN.AP-HoOXS-VALIDITY-INFRINGEMENT. Letters patent No. 47,764, granted May 16, 1865, to C. B. Bristol, for an improved snap-hook, held, valid, and infringed as to itsjir8t claim 2. SAME-SAME-INFRINGEMENT. Complainant's snap-hook, in which the tongue is pivoted in a recess oetween two cheeks in the shank, with a coiled spring in the recess arranged around the pivot so that the two ends of the spring bear, one upon the tongue and 'the other upon the body of the hook, tending to press the tongue up against the end of the hook, but yet permitting the tongue to be depressed to open the hook, held, infringed by defendant's device having a similarly constructed shank, and tongue similarly pivoted, with a substantially similar recess in its rear end,· but in which the ends of the spring within the recess do not project forward towards the hook. 3. PATENT-LIBERAL CONSTRCTION-TECBNIOAL CLADrS-CONSTRUOTION. Patents are to be liberally construed so as to give the owner of the patent his actual invention, if such favorable construction can fairly be made. Technical claims are to be construed with reference to the state of the art, so as to limit the patentee to, and give him the full benefit of, the invention he hai made. E8tabrook v. ])unbar, 10 O. G. 909. 4. SAME-COMBINATION-BENEFICIAL RESULT. It is immaterial, in a patent for a combination, whether by means of the location of the parts they are severally benefited or not, provided a new and beneficial effect is the result of the combination. Haz"les v. Van Wormer, 20 Wall 353.
Joseph S. Beach, for plaintiffs. William E. Simonds, for defendants. SHIPMAN, D. J. This is a bill in equity, founded upon the alleged infringement by the defendants of lette,rs patent granted May 16, 1865, to Charles B. Bristol and others, assignees of said Bristol, for an improved snap-hook. The patent is owned by the plaintiffs. Bristol'S invention [quoting from the testimony of Mr. Earle, the plaintiffs' expert] "is an improvement in that class of snap-hooks in which the tongue is pivoted in a recess between two cheeks in the shank. In this recess a coilspring is arranged around the pivot so that the two ends of the spring bear, one upon the tongue and the other upon the body of the hook, tending to press the tongue up against the end of the hook, but yet permit the tongue to be depressed to open the hook. In this class of hooks, prior to Bristol, the tongue was cast with a recess upon its under side to form two cheeks corresponding to the cheeks in the shank of the hook. 'l'he cheeks on the tongue were drilled corresponding to the hole through the cheeks in the shank, so that a rivet could be inserted through the sides of the shank and both sides of the tongue, to form the pivot on which the tongue would turn. The coil of the spring was arranged around the pivot, the two ends bearing, one upon the shank and Olle upon the hook, as before described.".