Page:Federal Reporter, 1st Series, Volume 5.djvu/815

 KIBBY V. AfiMSTHONb. S03 �cient to entitle the complainant to a recovery oif profits to ahow that gains had reshlteà from the general business. He was required to go further, and slibw by evidence ■what profils the infringers had derived from affixing to their machine bis invention. �It is now well settled that if the complainant in a suit for an injunction and profits fails to show that the use of bis invention in connection with other machinery, of wbich bis invention is an improvement, bas produced a definite part of the whole profits, bis recovery of profits must be nominal only. Robertson y. Blake, 94 U. S. 728; Qarretson v. Clarke, 16 0. G. 806. �The soundness of tbis rule is recognized in the City of Elizabeth v. Pavement Co. That was a suit to enjoin certain parties from iufringing a patent issued to Samuel Niobolson for a new and useful improvement in wooden pavement, and for profits. The defendants, in their answer, amongst other tbings, alleged that they had constructed the pavement in accordance with a patent granted to John W. Broeklebank and Charles Trainor. In that case the profits received by the defendants were the fruits of the use of Nicbolson's in- vention. It was not a case in which only a part of the profits had resulted from the use of the Niobolson improvement. The Nicholson pavement was a complete thing, consisting of a certain combination of elements which the defendants used as an entirety. The evidence failed to show that the Broek- lebank and Trainor invention contributed to the profits real- ized ; in f act, it tended to show that the use of this invention diminished the profits instead of increasing tbem. In decid- ing the case the court says: "It is not the case of a profit derived from the construction of an old pavement, togetber with a superadded profit derived from adding tbereto an im- provement made by Nicholson, but of an entire profit derived from the construction of bis pavement as an entirety. A separation of distinct profit derived from Broeklebank' and Trainor's improvement, if any such profit was made, migbt bave been sbown ; but, as before stated, the appellants fail to show that any such distinct profit was realized." ����