Page:Federal Reporter, 1st Series, Volume 2.djvu/712

 WILLIAMS V. ■&., W. & Ô. E. 00. . 705 �the plaintiff's lamp, as patented, was the only one which could succescfully burn kerosene oil, except infringing lamps, is not supported by the evidence ; that the finding as to the Carton lamp is not supported by the evidence ; that the find- ing of the damage of $le3 is contrary to the evidence; that no gains, profits or advantages should havebeen found; that only nominal damages should have been found; and that, although Bome of the burners used by the defendant con- tained only a portion of the patented improvements, the mas- ter has reported the same amount as to those lamps as to those -which contained ail the patented featurea. �In argument, it is conteuded for the defendant that the plaintiff is not entitled to recover as profits the saving made by the defendant in burning kerosene oil in the infringing head-lights, but is entitled to recover only a proper license fee for es^ch head-light. This view is based on the proposi- tion that the plaintiff exercised his monopoly, not by using his patented inventions to burn kerosene oil in them, but by making and selling head-lights. There wonld be force in this suggestion if the suit were one at law, for damages only. But this suit is a suit in equity for an account of profits, savings or advantages by the use of the patented inven- tions. The statute, (section 4921 Eev. St.,) taken from the act of July 8, 1870, (16 U. S. St. at Large 206, § 55,) expressly gives to the plaintiff, on a recovery in a suit in equity for an infringement, "the profits" to be accounted for by the defend- ant, in addition to the damages which the plaintiff has sus- tained by the infringement. It is the infringement, and the suit in equity and the decree therein, which give the) right to the profits, and no court has any right to turn those profits into the license fee which would have been the ^remuneration to the plaintiff if there had been no suit in equity and no decree. The defendant made its election when it infriuged and subjected itself to a suit in equity, and the plaintiff is entitled to the resuit of the choice he made of suing in equity and not at law. The plaintiff made his inventions for the purpose of enabling any one using them to successfuUy burn kerosene oil in lamps for locomotive head-lights, and to obtain �v.3,no.8 — 45 ����