B. B. Hill Mfg. Co. v. Stewart

LACOMBE, Circuit Judge.

There is no evidence to show any representations by defendants that the goods they sell are of plaintiff’s manufacture. They look like plaintiff’s goods because both makers modeled their goods on a form shown in an earlier and expired patent (No. 228,121). To that extent the bill should be dismissed.

The invention is a narrow one, but yet patentable. Extended discussion of this branch of the case would be profitless because of the measure of relief which the facts in proof indicate must be adopted. Defendants, before suit brought, made hand stamps which were manifestly infringements of the patent in suit. Since then they have made them without the “spring tension,” which is the principal feature of the patent; insisting that this later model is quite as good as the one shown in the patent. Complainant may therefore take a decree enjoining future manufacture or sales of hand stamps containing the spring tension of the patent, but excepting from its operation the later model.

It is not disputed that at one time (whether for a longer or a shorter period the evidence is conflicting) plaintiffs made and sold the patented article without marking it “patented,” and giving the day and year the patent was granted. There is no satisfactory proof that defendant was duly notified of infringement, and continued after such notice to infringe. Section 4900, Rev. St. U. S. Under these circumstances, nominal damages only can be recovered for infringement.

Inasmuch as neither party hás substantially prevailed, the decree will be without costs to either as against the other.