Page:Federal Reporter, 1st Series, Volume 8.djvu/773

 CALKINS V. BEB^^RAND. 75^ the manufacture of the whole instrument. * *. *• WKafe advantage did tliofi haye that they would not liave had if they had built their machine with- flut theimproveoient?". '•■,■■■ ,To the same eiieot are Seymour y. McCormick, 16.How. 490; Philp V. Nock, 17 Wall. 460; Motvryv^ WMfney, U Wall. 620., Upoa the original reference the only proof offered by eomplainatit was as fto the profits realized by the defendants npon the entire machine as ;made by them. The proof showed tkat defendcint's machine not only included the feature of hanging a, ploWrbeam to thetongue between the. eveoer and.neck-yoke, but also contained» atkastj 10 enumer- aied devioes covered by a patent OTftned by defendants, and whieh, defendants contended, gavo the chief praetjeal value, to their ma- In the order of refei-ence themaster was direoted toinquire and report more fully 'frhat—!-! ■ : , •" Profits have been made by defendants upon themachinestmaBlifeietured by tliem,; * *, *, and what portion of the profits rctported by Mm ai^ made by defendants on their ^id machine is or may be dne to the pati^nted dey^ces of defendants contained in said machine, and the value of , defendants' iraprove- ments found in their machines, which oiight to bo deiduc.ted fro'nithe profita fbundby said'master." ' ''■ ■ O;' i'.. In the new proof taken before the master compiaih'aht bas not attempted to show how mucli bf the profits made by the defendatits is due to the use of the'patented deviees of the .defendants also used in the machines. i'he only new proof taken by. complaina'nt relates to defendants' profits on the' entire. machine, and not to the lise of coni- plainant's device in defendants' machine. . " The plaintiff 9inst;Bhow his damages by evidence.; ^h^.must not be.left to conjecture by the jury. They niust be piroved aiid not j'umped at. Philp V. iyoe/c, 17 Wall. 46o; ' ' ' " ' ' ' ' "''■ ' ' " Damages muslbeproved; they ^e not tobepresuiried." BlaMv.Robert- iow, 94 U. S. 733. ! ; ' ' • " "The patentee must in every case .give evidence tendjng tcf separaite or apportion the defendants' profits and patentee's damagfs befTsrejsn the patepted features and the unpatented featurcs ; and such evidence must be,reliable and tangible, and not conjectural or speculative, or he inust show by equally reli- able and satisfactory evidence that the' profits and idiiihages' are to Be idalcii- lated on the wliole machine, for the reason that the entirevalueof the whole machine, aa a! marketable artrclei ;is properiy and legally attributable tb the ' In the ligbt of th«se atithorities it I8 quito ileair'thkt the coidplairi- ant bas not ftilrnitehed by'his proof anyreliabiei'siaiiiaard for cdmpu!- ing or assessing his damages. He has ribt'-i^ufWtihOw niiltfH df tilu
 * patented,feat,ijre^",. 14Q.'G.i485. : ;, i;: : * • : . : t