Lorain Steel Co. v. New York Switch & Crossing Co.

Citations

• 153 F. 205
• 1907 U.S. App. LEXIS 5086

Syllabus

<p>1. Patents■ — Suit for Infringement — -Right to Recover Damages and Profits.</p> <p>Under Rev. St. § 4900 [U. S. Comp. St. 1901, p. 3388], which makes it the duty of a patentee to give notice of his rights by marking the patented article, and precludes the recovery of damages for infringement, except on proof that defendant was duly notified of the Infringement and continued to infringe thereafter, the burden rests on the complainant, in a suit for infringement, to allege and prove such notice either to the public generally by such marking of the patented article, or by direct notice to the defendant, and in the latter case neither damages nor profits are recoverable except for infringements after such notice was given.</p> <p>2. Same — Notice of Infringement.</p> <p>AVhere a bill for infringement of a patent admitted that complainant had-made and vended tile patented articles without any averment that they were marked, as required by Rev. St. § 4900 [U. S. Comp. St. 1901, p. 33881, but alleged that defendant was notified of its infringement, and continued to infringe thereafter, without, however, giving the date of such notice, an admission of such notice by defendant l>y failing to deny it in the answer did not relieve complainant from the burden of proving the date, and, where that question was not adjudicated by an interlocutory decree finding infringement and directing an accounting, such date must be proved before the master to afford any basis for an accounting.</p> <p>[Ed. Note. — Accounting by infringer for profits, see note to Brickill v. Mayor, etc., of City of New York. 50 (’. C. A. 8.1</p>