Page:Harvard Law Review Volume 10.djvu/295

269 ACTIONS UNDER THE PATENT STATUTES. 269 As to the burden of proof. The plaintiff in order to prevail must prove beyond a reasonable doubt that the marks were affixed to unpatented articles by the defendant, that they were so affixed with intent to deceive the public, and that the articles were un- patented. The intent to deceive must accompany the specific act of marking, and no intent of subsequent origin has any effect to bring the defendant within the statute. Nevertheless, acts com- mitted by the defendant both before and after the marking may be inquired into for the purpose of determining the actual intent at the time of marking.^ The ease with which a defendant can clear himself of the impu- tation of evil intent is suggested by the rule adopted in Nichols v. Newell, namely, that if any portion of the articles complained of were marked innocently, and if the plaintiff has not clearly distin- guished between the innocent and guilty acts, then it shall be pre- sumed that all the articles complained of were marked innocently. " After taking all the evidence together, if it can be reasonably and fairly reconciled with defendants' innocence, then they are not proved to be guilty, although it may be fairly and easily reconciled with the supposition that they committed the acts charged." ^ But much latitude in the admission of evidence is permitted in such cases, because questions of fraud and deceit are involved.^ One case offers a reasonable rule by which the question of intent may be tested, and guards against so strict an interpreta- tion of the statute as will effectually render it a dead letter. In Tompkins v, Butterfield ^ the court instructed the jury that recklessness on the part of a defendant in affixing the word "patented" to articles of his manufacture is, in the absence of proof to the contrary, sufficient to establish his guilt. Thus, while a defendant who owns a patent is given the benefit of any reason- able doubt, and permitted to hold any plausible opinion that the articles marked by him do in fact fall within the descriptions of his patent,^ there is a limit to the excusable elasticity of his imagination. In giving defendants in such cases the benefit of every reason- able doubt, the courts will always, it is believed, extend to a patent 1 Nichols V. Newell, i Fisher, 647. 2 Walker v. Hawxhurst, 5 Blatch. 494. « 25 Fed. Rep. 556.
 * Lawrence v. Holmes, Booth, and Hayden, 45 Fed. Rep. 357.