Page:Federal Reporter, 1st Series, Volume 4.djvu/432

 418 F2DSBAL BEFOBTEB. �separate and general license fee for the use of the jaw, whîch virtually representa, as I have before stated, the first claim of the patent, of f 10 per car. There is no evidence of any license fee having been established for the use of the brace, or pôle support, with its posterior attachaient, or rest, which constitutes the second claim. If, therefore, the patent were found tobe valid as respects the first claim, and not as respects the second, the plaintiff's right to recover would be limited to a Bum not exceeding $10 per car. On the other hand, if the patent Tvere found to be valid as respects the second claim — the braqe, with its suppoyt— and not valid as respects the first, then, inasmuch asno license fee bas been established for the separate use of this device and its attachments, theplaintiiffl right to recover would be limited to nominal damages onlj, which I bave stated to you would be six cents. �Thus far I have spoken of the plaintiff's ^pnma /acte case alone, and the findings referred to would, I repeat, be justified if the testimony went no further. The defendants, however, assert, and have produced evidence tending to prove — First, that in the year 1874, and again in 1876, the plaintiiï author- ized them to apply the patented devices gratuitously, there- af ter, to their cars and pôles ; and, second, that the devices were not new, as respects either of the claims, at the time of the alleged invention by Sampson j and that the patent is, there- fore, invalid. �If the first of these allegations is proved to your satisfac- tion, the plaintif cannot recover, in any event, for the use of the device by defendants on the cars and pôles manufao- tured after sueh authorization. If the second allegation is proved, to wit, that the devices — both of them — oovered by the claims were not new, but had been known and similarly applied and used before Sampson's alleged invention, the plaintiff cannot recover anything; for, in such case, the patent is void. If one of the claims, — and I invite your attention particularly to these distinctions, — if one of the claims was not new at the time referred to, and the other was, the validity of the patent and the plaintiff's right to recover je limited to the latter — to the one which was new. Thus we ����