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: 52
xvi, 1023 p. ; 23 cm.View a full description of this legislative document.
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281,R EDRBAL REPORTR
In Error 'to the Distiict, Court of the United States for theDistrict
of Minnesota; Wilbur, F. Booth, Judge, ,
Action at law by the Flat Slab Patents Company ,Wgaist the North-
western Glass Company to recover damages for ipfring rent of pat-
ent. Judgment for defendant, and plaintiff brings errpr..,.Affirmed.
Amasa C. Paul, of Minneapolis, Minn., for plaintiff in error.
F."A. Whiteley, of Minneapolis, Minn., for defendant in error.
Before SANBORN and CARLANI, Circuit Judges,. and TRIE-
BER, District Judge.
CARLAND, Circuit Judge. For convenience the parties will be
designated as they were ip the trial court. The plaintiff sued the
defendant at law to recover damages fotl the infringement of patent
No. 698,542, issued April 29, 1902,'to Orlando W. Norcross for im-
proverrients in "flooring for buildings." On a trial of the issues the de-
fendant recovered a verdict. Tre trial court instructed the jury that
their verdict must be for the defendant, unless they' found from the
evidence that the defendant was duly notified of the claimed infringe-
ment prior to the period for which plaintiff sought to recover damages,
and that, if the jury should find for the plaintiff on the question of
notice, then their verdict should be for nominal damages only. Coun-
sel- for plaintiff claims that this charge was erroneous. The trial
court's view as,to the question of damages has been rendered immate-
rial, by the verdict of the jury, unless we shall decide' ,htthe 'law did
not require, the plaintiff to give notice of the claimed infringement.
We therefore proceed to discuss the question, of notice. Whether a
notice, was required, as the court instructed thq jury, depends upon
the proper construction of section 4900, R. S. U. S. (Comp. St.
9446), which reads as follows: .
"Sec. 4900. Patented Articles Must be Marked as Such. It shall be the duty
of all patentees, and their assigns and legal representatives, and of all per-
sons making or vending any patented article for or under them, to give suffl-
cient notice to the public that the same is patented, either by fixing thereon
the word 'Patented,' toefier with the day and year the patest kas;granted,
or when, from the charaqcer of the article, this cannot by done, by fixing to
it, or to the package wherein one or more of them is inclosed, a label con-
taining the like notice; and in any suit for infringement, by the party failing
so to mark, no damages shall be recovered by the plaintiff, except on proof
that th defendant was'duly notified of the infringement,'ald continued; after
'uch notice, to make, use, or vend the article so patented!"
[1] Plaintiff contends that, as the evidence showed that it had never
been engaged ii.manufacturifik or selling the patented flooring, it was
not barred under the statute for the recovery, of damages because of
failure to mark the patent flooring in the manner prescribed in the
statute or by failure to give notice of infringement to'the defendant
prior to the beginning of the period' for which t'ecovery3 is sought.
Counsel have not cited, nor have we been able to find, any authority
which would be binding on thi' court as to the 'onstruction of the
statute with reference -as to whether it applies to a, patentee who has
never been engaged in manufacturing or selling the article for which it
owns a patent. It is true that under the law a patentee is not obligedr .-., + T7
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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/m1/68/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.