Page:Federal Reporter, 1st Series, Volume 8.djvu/770

 756 FEDERAL REPORTER. �8. Same—Same — Absence of Affirmative PnooF — Arbithaet Apportioji- �MENT. �In the absence of affirmative proof on the part of the complainant as to the profits made by the defendant by the use of the infringing f eature, it cannot be assumed that half or any other share of the profits made by defendant on iia entire machine was due to the use of such f eature. �9. Samb— Nominal Damages— Costs. �Where nominal damages only are awarded the complainant for the infringe- ment of his patent, the aasessment of costs wUl depend upon the special cir- cumstances of the case. �Offield e Towle, for complainant. �West e Bond, for defendants. , �Blodgbtt, D. J. This suit was brought by complainant against the defendants for infringement of certain letters patent issued by the United States to IrUlius R, Smith, on the twenty-fourt];i of April, 1860, and reissued to Julius Gerber, April 26i, 1870, for "an im- provement in cultivators." A hearing was had upon pleadings and proofs, and a deoree entered finding that defendants infringed the first claim of the reissued patent, which is for "an auxiliary frame carrying two or more shovel standards on e9,ah. side, as shown, ^hen said frame is hinged to the poie between the evener and the neck- yoke, ae desisribed, for the purppses set forth;" and a reference made to the master to take proofs and state an account of the gains and profits received by defendants, and the profits of which com- plainant had been deprived, and the damages sustained by hinl in consequence of the infringement so foand and adjudged. �The proof taken on the hearing on the question of, infringement showed that the complainant's patent is applicable to what is known to the trade as a "Eiding Straddle Eow Cultivator ; " that is, a wheel cultivator, on which the operator rides, provided with devices which enable him to drive the team and manage the plows from his seat. The defendants' cultivator belongs to the same class, but the devices by which the plows are manipulated, and many of the opera- tive parts of their machine, are not cpmmon to the complainant's machine; the only feature of complainant's patent which defend- ants' machine was held to infringe being that of hinging the beams to the pole or tongue between the evener and neck-yoke so as to secure what complainant calls the "long swing" motion, peculiar to his cultivator. It will thus be seen that defendants were not found to infringe complainants' entire machine, as covered by his reissued patent, but only one element or featuro of it. Other features pecu- ��� �