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Opinion of the Court.

Court was right in directing the payment of the balance due on the purchase of these lands.

Counsel for appellant, however, referred us to the records in other cases which have come to this court; and insisted that by the facts appearing in them it is clear that the intervenors were not entitled to priority. It is enough to say that those facts are not before us. It is true, that in this record after the entry of the final decree of foreclosure, of November 12, 1885, there is found this stipulation: "It is hereby stipulated that the testimony heretofore taken and filed in this cause, under the reference to A. J. Ricks, special master, may be used in any future litigation touching Toledo terminal property, with the same effect as though originally taken therein, each party to such future litigation reserving the right to take additional testimony if so advised; and the purchaser at foreclosure sale shall take subject to this provision, and shall be deemed to have assented thereto." But that stipulation does not bring into this record all the testimony referred to; and which, as counsel say, may be found in the other records. What part of such testimony was used in the hearing of this intervention is not disclosed; nor whether any additional testimony was taken. The stipulation only gives permission to use such testimony. But how do we know that of it was used? But, further, it is signed by no one, and in terms names no one, and so could of course be binding only upon the parties to the record, and those who in fact assented to it. While Luce and Newton, the intervenors, were named in the amended bill of complaint in the Indiana court as parties defendant, there is nothing to show that they were ever served with process, or ever appeared or answered. More than that, by the final decree of foreclosure, entered November 12, 1885, Luce and Newton, with others, were dismissed from the case as parties defendant. So, summing this up, there is nothing to show that Luce and Newton were ever in fact parties to the litigation in the Indiana court. It appears affirmatively that if they ever were served with process or appeared, they were dismissed before this stipulation was entered into, and that they did not sign it. Hence, it was not binding upon them,

any

Syllabus.

nor could it be invoked as against them by Kneeland, the purchaser. The case then is one of a claim apparently good, sustained by the decree of the trial court, and brought here for review without any of the testimony introduced in the trial court, and upon which its decree was based. Of course on such a record no error can be adjudged.

The decree is

Affirmed.

The CHIEF JUSTICE, MR. JUSTICE BRADLEY and MR. JUSTICE GRAY did not hear the argument nor take part in the decision. of this case.

CROSBY STEAM GAGE & VALVE COMPANY v. CONSOLIDATED SAFETY VALVE COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 999. Argued October 22, 1891.

Decided November 2, 1891.

On an accounting as to profits and damages, on a bill for the infringement of letters patent No. 58,294, granted to George W. Richardson, September 25, 1866, for an improvement in steam safety-valves, the Circuit Court, confirming the report of the master, allowed to the plaintiff the entire profit made by the defendant from making and selling safety-valves containing the patented improvement, and this court affirmed the decree, on the ground that the entire commercial value of the defendant's valves was to be attributed to the patented improvement of Richardson. It was held that the plaintiff's valves of commerce all of them contained the improvements covered by the patent of Richardson, and that, as the master had reported no damages, in addition to profits, the amount of profits could not be affected by the question whether the plaintiff did or did not use the patented invention.

It was proper not to make any allowance to the defendant for the value of improvements covered by subsequent patents owned and used by the defendant.

It was also proper not to allow to the defendant for valves made by the defendant and destroyed by it before sale, or after a sale and in exchange for other valves, which did not appear in the account on either side. It was also proper not to allow a credit for the destroyed valves against the profits realized by the defendant on other valves.

Interest from the date of the master's report was properly allowed on the amount of profits reported by the master and decreed by the court.

Opinion of the Court.

IN EQUITY. The case is stated in the opinion.

Mr. Edmund Wetmore for appellant. Mr. Joshua H. Millett was with him on the brief.

Mr. Thomas William Clarke for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 27th of May, 1879, the Consolidated Safety Valve Company, a Connecticut corporation, brought a suit in equity in the Circuit Court of the United States for the District of Massachusetts, against the Crosby Steam Gage and Valve Company, a Massachusetts corporation, for the infringement of letters patent No. 58,294, granted to George W. Richardson, September 25, 1866, for an improvement in steam safetyvalves. The claim of that patent was as follows: "What I claim as my improvement, and desire to secure by letters patent, is A safety-valve with the circular or annular flange or lip c c, constructed in the manner, or substantially in the manner, shown, so as to operate as and for the purpose herein described."

On the 2d of June, 1879, the same plaintiff brought a suit in equity in the same court against the same defendant, for the infringement of letters patent No. 85,963, granted to the same George W. Richardson, January 19, 1869, for an improvement in safety-valves for steam boilers or generators. The claim of that patent was as follows: "What I claim as new, and desire to secure by letters patent, is the combination of the surface beyond the seat of the safety-valve, with the means herein described for regulating or adjusting the area of the passage for the escape of steam, substantially as and for the purpose described."

In the answers in the two suits, the defence of want of novelty was set up, and alleged anticipating patents were referred to; infringement was denied; and it was averred that the valves made and sold by the defendant were the inventions of George II. Crosby, and were described in two patents granted to him and owned by the defendant, one, No. 159,157,

Opinion of the Court.

dated January 26, 1875, and the other, No. 160,167, dated February 23, 1875.

The same proofs were taken in the two suits, and they were heard together in the Circuit Court; in each suit a decree was made dismissing the bill (7 Fed. Rep. 768); and from each decree the plaintiff appealed to this court. Non-infringement was found by the Circuit Court. This court (113 U. S. 157) reversed the decree in each case, and directed the Circuit Court to enter a decree in each case sustaining the validity of the patent, decreeing infringement and awarding an account of profits and damages.

On receiving the mandate of this court in the suit on the patent of 1866, the Circuit Court, on the 18th of May, 1885, entered a decree in conformity therewith and for a recovery by the plaintiff of profits and damages from February 15, 1879, and ordered a reference to a master to take an account of such profits and damages. A like decree was made on the mandate in the suit on the patent of 1869. The date of February 15, 1879, was taken because that was the time when the title to each of the patents became vested in the plaintiff.

The master took voluminous proofs, and filed his report on the 5th of August, 1889, covering both of the suits. The report of the master found that the total profits which the defendant had derived from its manufacture and sale of steam safetyvalves containing the improvement described and claimed in the patent of 1866, from February 15, 1879, to September 25, 1883, the date of the expiration of the patent, amounted to $40,344.59. Both parties filed exceptions to the report; and on the 11th of October, 1890, the Circuit Court entered a decree overruling both sets of exceptions and awarding to the plaintiff a recovery for the $40,344.59, with interest thereon from August 5, 1889, the date of the filing of the master's report, and the costs of the suit. From this decree the defendant has appealed. The opinion of the Circuit Court is reported in 44 Fed. Rep. 66.

The master says, in his report in the case, in respect to the patent of 1866, which he calls No. 1184, that, for the period from February 15, 1879, to September 25, 1883, he attributes

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Opinion of the Court.

the entire commercial value of the valves manufactured and sold by the defendant to the improvement covered by the patent of 1866. He adds: "Richardson's invention, as described and claimed in that patent, revolutionized the art of relieving steam-boilers from steam pressure rapidly approaching the dangerous point. It made effective for that purpose - rapidly, and with comparatively small loss of steamapparatus described in other patents, which very nearly embodied Richardson's invention, but did not actually contain it. The Supreme Court in these cases has defined this invention, and has declared it to be a vital one a life-giving principle to structures very nearly approaching, but not quite containing an embodiment of, Richardson's discovery." The master also says in his report: "It was contended before me that none of the complainant's valves of commerce contained this invention of Richardson, but, upon the whole evidence, with specimens of all the different valves put on the market by the complainants before me, I find that they all contained Richardson's improvement of 1866. The Supreme Court has decided in these cases that the defendant's valves contain this invention, and it is under this decision that the accounting in No. 1184 is before me. Eliminate this invention from the defendant's valves and they would be commercially worthless. No substitute for this invention has been suggested to me, and I know of none which the defendants could have used in its place to have made their valves of commercial value. The defendants claim that some of the profits which they have made are due to the peculiar form of their valves, but the form which they used in making their valves was the form in which they clothed the Richardson invention, the life of their valves, and without that life the Crosby form is worthless."

The specifications and drawings of the two patents of Richardson are set forth at length in the report of the cases in 113 U. S. 157. The opinion of this court said (p. 178): "There is one structural difference between the two valves, which is now to be mentioned. In the Richardson valve, all the steam which escapes into the open air escapes from the huddling chamber, through a stricture which is smaller than the aper

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