Page:Federal Reporter, 1st Series, Volume 8.djvu/769

 CALKINS V. BEBTBAND. 755 �Calkins V. Bertrand and others. (Oireuit Court, N. D. Illinois. Jjily, 1881. ) �1. Rbissub No. 3,932— Cultiva'pok—Rbfekeiicb to Mastek— Exceptions to Mas- �TBR'B Report— NoMiNAi, Damages — Costs. �Upon a reference for the infringement of the flrst cdaim of reissued letters patent No. 3,932, granted April 26, 1870, to Julills Gerber, for improvement in cultivators, being but one element of a number composing defendant's device, and consisting in hinging the beams of the cultivator to the pole or tongue between the evener and neck-yoke, exceptions to master's report, flnding arbi- trarily, independent of any affirmative proof by the complainant, one-half the total net profit of defendant's machine to be due to such feature, «M«toi»ed, and nominal damage» and eosts only awarded complainant. �2. PAi9ŒNT FOB SlNGLE FeaTUBE OP MACHINE — InfEINGBMENT — HeABURE OF �Damages, �When a patent covers but one of many features of a machine, the gains on. the whole machine cannot be reckoned as damages for infringement thereof, but only the gains arising from the use of the special device or element claimed bysucli patent. , �Seymour v. McOormiek, ISBow. 490; Philp v. jVbcA, 17 Wall. 460; Mowry v,. Whitney, 14 Wall. 620; Cawood Patent Cote, 94 U. 8. 710; Oould» Manvfg Cb,. ▼. Oowing, 8 O. G. 278. �3. Single Infringihg Element— Oombination vuth InfhingiKg Element — �Measurb 01* Damages. ' �Where a machine is composed of several elements, only one of which in- �fringes a patent, the others making the whale a complete and operative mech- �" anism, being covered by patents in WhiCh the complainant has no interest, of �are public property, the complainant cannot recover'ptoats made by the use of �flueh parts, even in combination with his device., �4. Infringement— Damages — Pboof — Bdeden of Pboof. �The complainant must show his damages by reason of the infringement by evidence. They iriust be proved, and not jumped at. They are not to be pre- smned. JPhUpv. Noek, 17 WalL 460; Blaker. Bobertson, 94 U. 8. 733. �5. Same— Inpbxnging Element not Incbeasing Value— Nominal Damages. �Where the defendant shows by affirmative proof that his machine derived no- increased value in the market from the use of the inf ringing element, the com- plainant can only recover nominal damages: �6. BaMe — Samb — Affirmative Pboof by Defendant — Absence of Peoof by �Complainant. ; :, �Affirmative proof by defendant that he has made no profit by the use of the infringing feature, supplemented by the lack of proof to the contrary by the complainant, make no record from Which any damages or psoflts can be shown. �7. Bamb— Damages— Apportionmbnt—Bubden of Pboof— Evidence— Tangi- �ble-Speculative. ,, . ■ �The burden of proof is upon the complainant to separate or apportion the defb'idant's profits and complainant's damages between the features infringed and not infringed, and such evidence must be reliable and tangible, not con- jectural: pi speculative; or he rnust show by equally reliable a;vd,p^tjsfactory evidence that the profits and damages are to be calculated on the %hole ma- chine, for the reason that the eiitiVe value of the whole machine aS a marketa* ble article is properly and legally attributable to the patented feature. ��� �