Page:Federal Reporter, 1st Series, Volume 9.djvu/464

 PDTNAM V. LOMAX. 449 �measure of the profits made h^ defendant, or of complainaht's dam- ages. �Proof shows that the defendant is engaged in the business of bot- tling minerai waters, beer, etc., and uses these stopper-fastenings in his business, and also that he has sold some to the trade. It also appears that the complainant was engaged, during the term of infringe- ment, as a manufacturer of these bottle-stopper fastenings under his patent, and had ample facilities to supply the entire demand of the trade for these fastenings. �A patentee has the right to the monopoly given him by his patent, and may exercise that right, either by the exclusive manufacture of his patented article, or he may license others to manufacture on such terms as he chooses, or may sell his patent within certain territory. �There is no proof that the complainant had established a license fee or royalty for the use of his patent, and the fair conclusion from the proof is that he was deriving his profits solely from the manu- facture and sale of the article eovered by his patent. If the defend- ant manufactured for his own use, or for sale, he so far interfered with the complainant's sales, and so far damaged complainant's bus- iness. It may,perhaps, also be said, with entire accuracy, under the proof, that defendant, by being his oyn manufacturer, made a profit to whatever amount he, saved over and above what he would have paid if he bought of complainant. Technically, I think, the proofs tend more directly to show complainant's damages than defendant 's profits ; but I do not deem it necessary to criticise the report in that particular, as it f urnishes the data upon which the court can aet intelligently, and the criticism is more upon the verbiage than on the substance of the report. �The report shows how many of these fastenings were made and used by defendant, and shows that if he had not pirated upon com- plainant's patent he would have been compelled to buy of complain- ant, and therefore shows how much complainant was damaged. �As to the point that only part of the fastener is eovered by the pat- ent, I deem it enough to say that defendant used what was eovered by the patent. If he had not used the wire U-shaped yoke, but had used the tin yoke, which is said to have been old and not subject to patent, there would have been no infringement. The mere fact that to make an operative fastener under the Putnam patent require.d a wire collar or band around the neck of the bottle, or some device for attaching the fastener to the bottle, does not seem to me to eut any v.9,no.7— 29 ��� �