Melville Fuller

“ The report of a master is merely advisory to the court, which it may accept and act upon, in whole or in part, according to its own judgment as to the weight of the evidence. Kimberly v. Arms, 129 U.S. 512, 523, 9 Sup. ”

“ Where the patenteegranted no licenses, and had no established license fee, but supplied the demand himself, and was able to do so, an enforced reduction of price is a proper item of damages, if proven by satisfactory evidence. Manufacturing Co. v. Sargent, 117 U.S. 536, 6 Sup. Ct. Rep. 934. The damages must be actual damages, but where the patented feature is the essential element of the machine or article, as in the case just cited, if such damages can be ascertained they may be awarded. ”

“ The master reported 'that the number of lamp-burners proven to have been sold by respondents, containing the invention claimed in and by the first claim of complainants' letters patent, is fourteen, provided that only the capped burners sold contain said invention, and that the number is one hundred and fourteen, if the half capped burners so sold are to be held to contain said invention.' The evidence established that the first invoice of lampburners contained 50 20-wick burners with caps, of which respondents sold 4 ”

“ The evidence tends to establish a profit of $1.85 on the 20-wick burners, $1.50 on the 16-wick, and 75 cents on the 12-wick. This would show a profit of $23.80 on the 14 capped burners, being 820-wick and 6 16-wick burners; and a profit of $156.40 on the 100 half-capped burners, being 44 20-wick, 44 16-wick, and 12 12-wick burners. Respondents had been advised by their counsel that the burners with half caps were not an infringement. The cap was the invention in question. ”

“ Mr. Albert Graff binds himself to pay to Mr. Carl Schwintzer, instead of the, in the patent letter mentioned, one hundred dollars for the first year, the sum of two hundred and fifty marks, payable on the 1st February, 1886, and each following year on the same date the sum five hundred marks, (not less,) till the amount of four thousand marks are paid in all. S. 2. Should Mr. Albert Graff, of San Francisco, not be able to sell more than one thousand burners, called 'Diamond' or 'Mitrailleuse' burners, No. ”

“ But, assumiug that the sale of 100 burners with half caps was an infringemn t, we are not prepared to concede that the sale of 114 burners under the circumstances detailed could have had the effect, in compelling a reduction of price, which has been ascribed to it. ”