Page:Federal Reporter, 1st Series, Volume 3.djvu/577

 570. FEDERAL REPORTER. �passed upon the orator's rights ; but they did not take that course. If they knew then, as they know now, that the hor- izontal set would answer their purposes nearly or quite as well, they preferred to take the orator's invention. Having done that, they are liable to account to him for what they gained by that taking, without reference to what they might have gained if they had taken something else. Elisabeth v. Pavement Co. 97 U. S. 126. The difficulties about this sub- ject consist in ascertaining with certainty what profits are due to the infringement. In Mowry v. Whitney, where a pro- cess only was infringed, what was made by the process only was allowed. In Elizaheth v. Pavement Co., where the pro- duct was infringed, the profits on the produet were allowed. Here the partial sets are products ; the profits upon them are ascertained, and their profits must be allowed. �As no profits accrued to the defendants on a part of the organs made and disposed of by them containing the orator's improvement, none can be decreed to the orator on account of that infringement. It is what the defendants did gain, not what they might have gained, that they are aceountable for by way of profits. lavingston v. Woodworth, 15 How. 546; Elizaheth v. Pavement Co. 97 U. S. 126. If such profits, when recovered, will not make the patentee whole, he must resort to his remedies for damages. The statute provides that in cases like this an account of the damages may be taken and they be decreed to the orator. Eev. St. U. S. § 4921. But they must be proved to the master, as in actions at law they must be to the jury. This case furnishes no evidence from which such damages could be found with any satisfac- tory or sufficient degree of exactneas. It does not at ail appear that the orator would have supplied organs in place of these, on which no profit was made, for the partial set, if the defendants had not disposed of them without profit; and without some such proof the damages could not be found. Buesk v. Imhaeuser, 14 Blatchf. 19. Neither doea the evidence as to other damages afford any sufiieient basis from which the master would be warranted in fiuding any. It did not appear that the defendants were supplying the same marketa ����