Benjamin N. Cardozo

“ The claim is made that if the glass is not to be taken on the basis of market value, there must at least be an allowance of a reasonable royalty as compensation for the economies effected through the patented devices. But this is to misconceive utterly the position of an infringer accounting for illicit profits. 'An infringer cannot be heard to say that his superior skill or intelligence enabled him to realize profits by his infringement which a person of less skill might not have realized.' Lawther v. ”

“ Duplate bought its glass in sheets one-eighth of an inch thick from its contributory infringer, Pittsburgh. In the computation of the profits, allowance has been made for the material so furnished on the basis of manufacturing cost. The defendants now insist that the basis should be market value. The acceptance of such a measure would enable the infringers to profit by their wrong. There was no use in the automobile industry for glass so thin as this except in connection with the process described in the complainant's patent. ”

“ A word is needed in conclusion as to the asserted right of the defendants to examine the complainant's book . The defendants insist that with the aid of an inspection they can show that actual damages were suffered by reason of diverted sales, and damages so substantial as to forbid the award of a reasonable royalty, a substituted method of assessment to be used if other standards fail. It is not easy to see how the diversion of business, a negative condition, will be made apparent by the books. ”

“ Factory losses incurred as a necessary or normal incident to the completion of sales effected at a gain.
A sale resulting in a loss may not be offset by an infringer against another and independent sale resulting in a gain for the purpose of extinguishing or reducing a liability for profits. ”

“ The causes of waste are many. Inevitably a certain amount of glass is lost in the cutting. Grit and dust clinging to the pyralin even in minute particles produce defects destructive of the product as a merchantable commodity. ”

“ Experiments carefully made have been followed by improvements that reduce the risk of damage when the sheets are under pressure. At all times the business has been conducted with a high degree of care. ”

“ They kept their books upon the basis of the method they decry, and measured loss or gain accordingly. Average cost, even if not identical with actual cost, is the best approximation known to accountants. Cf. Norfolk & Western Ry. Co. v. State of North Carolina, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977, March 30, 1936. The defendants will not be suffered to charge the complainant with the losses of unprofitable transactions because the gains of the profitable ones cannot be reckoned to a nicety. The wrongdoer bears the burden in cases of confusion. ”

“ A like result will follow from the intrusion of a hair. To make the situation worse, a sheet of pyralin is charged with static electricity, which acts as an attractive force to bring loose particles together. ”