The Federal Reporter with Key-Number Annotations, Volume 281: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, September-October, 1922. Page: 3
xvi, 1023 p. ; 23 cm.View a full description of this legislative document.
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EMPIRE RUBBER & T. CO. V. DE LASKI & THROPP C. W. T. CO. 8
(281 F.)
rule in arriving at our conclusion; and as these conclusions mainly in-
volve questions of fact of no interest to any one except the litigants, we
shall state them without discussion.
[2] The question of profits as tried before the master on the refer-
ence and before the District Court on exceptions turned on the question
of what constitutes a proper standard by which to compare the gains
and savings made by the use of the infringing machines over other
means available at that time for doing the same work.
The machine bf the patent (described in the opinions of the original
case), while an unitary structure, is readily separable into two parts,--
a stand or understructure on which tires are wrapped when being ro-
tated and a superstructure embodying rolls which compress the tires in
their rotation. The latter constitutes the essential feature of the in-
vention. When the superstructure is removed or the pressure, rolls
suspended, the understructure can be used (as, indeed, it was used by
the defendant) for wrapping tires. Wrapping by the understructure
alone is, however, not so satisfactory. As the patent is for a combina-
tion comprising both structures, this part of the machine alone is, not
the invention of the patent. For its use by the defendant, the plaintiff
neither charges infringement nor claims profits. Another machine,
without pressure rolls, known as the "Williams" machine, was also
used by the defendant for wrapping tires. These machines the master
and the court regarded as the proper standard of comparison. The
plaintiff, however, insisted, and still insists, that original hand wrap-
ping is the proper standard. As there is ample evidence to sustain
the finding of the master that the Thropp machine without the pressure
rolls and the Williams machine were, through the periods of infringe-
ment, not only available to .the defendant but were used by it in wrap-
ping tires and thus became the proper standard of comparison-evi-
dence equally persuasive to the trial court and to this court--we can
not discover clear error or mistake in the finding. Columbia Wire Co.
v. Kokomo Steel & Wire Co., 194 Fed. 110, 114 C. C. A. 186; American
Co. v. Snyder (D. C.) 241 Fed. 274.
[31 As the plaintiff built its case on hand wrapping as a proper
standard of comparison, which was rejected by the master and by the
court, there is in the record no evidence of gains and savings in the
use of the infringing machine measured by the standard which the
master and the court adopted. Therefore, we find nothing in the rec-
ord to support the plaintiff's claim for profits. Feeling the force of
this situation the plaintiff maintains that under the apportionment doc-
trine of Westinghouse v. Wagner, 225 U. S. 604, 614, 32 Sup. Ct. 691,
56 L. Ed. 1222, 41 L. R. A.. (,N. S.) 653, it is, nevertheless, entitled to
profits because the defendant commingled the profits obtained from the
use of the infringing machines with profits of its own. Should we
assume this to be true, the plaintiff, while not compelled to prove what
part of the commingled profits were, derived from infringement, is
still confronted with the burden of establishing some proper standard
of comparison, by which .to determine whether there were, in fact, any
profits at all, for, obviously, the patentee is only entitled to recover
profits, measured by gains and savings, which are attributable to the
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The Federal Reporter with Key-Number Annotations, Volume 281: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, September-October, 1922., legislative document, 1922; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38852/m1/19/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.