Page:Harvard Law Review Volume 10.djvu/299

Rh facturer, a series of wanton errors in the matter of marking goods may enable the informer to figure up his rewards in millions. If he believes, however, that the only duty which devolves upon him as a plaintiff is to prove the manufacture and marking of a number of articles, with such words as the statute prescribes, and to show further that no patent exists under which the marking can be justified, leaving the matter of guilty intent to inference (as in Tompkins v. Butterfield, supra) he pursues a phantom. The courts have jealously guarded the operation of the statute, so that a defendant who is brought to trial may only be fairly punished, and an informer reasonably rewarded. The treatment of cases arising under § 4963 of the Revised Statutes, which provides for penalties in case the word "copyright" shall be falsely applied to uncopyrighted articles, is precisely the same as that of cases under the patent statute; so that the two classes of cases may be discussed together.

The question arose whether more than one penalty can be imposed in a case where two thousand chromos, wrongfully marked "copyrighted," were printed each day for twenty-five consecutive days, the chromos struck off on the successive days being identical except for the names of different persons printed thereon, by way of advertisement. It was held that only where the continuity of an act is broken by lapse of time, or other circumstances, can there be found to be more than one offence. Here the acts were continuous, and withouit variation, so that there was in law but one offence.

Likewise, where several unpatented articles are falsely marked patented, and the marking is done so that the whole is one continuous act, then but one offence is committed, and only a single penalty can be recovered, although many articles may have been marked.

Obviously, under such a rule of construction as this, there must also be clearness and definiteness in the pleadings of an informer. Where an informer averred in one count that the defendant had marked ten thousand uncopyrighted articles "copyrighted," and prayed judgment for one hundred dollars for each alleged fraudulent marking, it was held on demurrer that the declaration was bad, since it joined ten thousand separate causes of action in one