Buerk v. Imhaeuser. patent of the United States, the watches which are now adjudged to be an infringement of the plaintiff's patent. They were not wilful infringers, and, therefore, are not to be visited with punitive damages. It is only actual damages which are proved to have been sustained by the plaintiff that he can, in any event, recover. It is not enough that he may have suffered loss, for he cannot have compensation for conjectural losses. The losses must be proved and not guessed at. (Philp v. Nock, 17 Wall., 460.) It was not made to appear that the plaintiff could have sold his watches to the persons who purchased from the defendants. The watches have been adjudged to be identical in principle, but they differ in structure and appearance; and it can not be known that those who bought the infringing article would have bought the plaintiff's watches under any circumstances. The difference in structure as well as the difference in price enter into that question, and no means are afforded for determining it by the proofs. (Smith v. Prior, 2 Sawyer, 461; Carter v. Baker, 1 Id., 512.) The inquiries suggested by those cases, as pertinent to the assessment of a plaintiff's damages, do not warrant the adoption of the result. stated in the report. The damages in such a case must be confined to the direct and immediate consequences of the infringement, and not embrace those which are both remote and conjectural. In The Goodyear Dental Vulcanite Company v. Van Antwerp, (9 Off. Gaz. of Pat. Office, 497,) Judge Nixon, speaking of the modes of ascertaining damages and profits, says: "In order to ascertain these, it is especially pertinent to inquire how the owner of the patent has seen fit to use his invention. He may retain a close monopoly in it, and then the damages are computed by investigating the defendant's profits, which are reckoned a fair criterion of the complainant's loss; or, he may grant license fees, allowing the benefits of his invention to every one who will pay a stipulated price for its use." In this the learned judge was but reiterating what had been said by the Supreme Court in granting a new trial in the case of Buerk v. Imhaeuser. Seymour v. McCormick, (16 How., 480.) That Court declared, further, that "actual damages must be actually proved, and cannot be assumed as a legal inference from any facts which amount not to actual proof of the fact. What a patentee would have made, if the infringer had not interfered with his rights, is a question of fact and not a judgment of law. The question is not what speculatively he may have lost, but what actually he did lose. It is not a judgment of law, or necessary legal inference, that, if all the manufacturers of steam engines and locomotives, who have built and sold engines with a patented cut-off or steam-whistle, had not made such engines, therefore, all the purchasers of engines would have employed the patentee of the cut-off or whistle." There is another error involved in this assessment of damages, and that is, that the estimated profit of the patentee embraces not only that derived from the sale of the patent privilege, but also the whole manufacturer's profit upon the materials and workmanship of the whole article. When the inventor charges a royalty or license fee, he isolates the value of the use of his invention, and, separating it from all other things, fixes its value as against himself and in favor of others. If he also makes and sells the machine in which his invention is embodied, there will enter into the price, not only the cost of materials and the ordinary profit of manufacture, but also an amount of additional profit, which is, or is the equivalent of, this license fee, and adds to the price that additional sum, as compensation for the invention. It is this price of the invention, which the inventor is entitled to recover as damages against an infringer; and, in ordinary cases, it is this only. Wanton infringement may introduce other considerations, but such is the measure of damages when the case is one simply of infringement. In cases where the patent is for a distinct im provement, separable from the rest of the article, as, in the case put by the plaintiff's counsel, of a wagon with a patent pole, the rule is admitted and settled. (Seymour v. McCormick, 16 How., 480; Gould's Manufacturing Co. v. Cowing, 12 Blatchf. C. C. R., 243; Mowry v. Whitney, 14 Wall., 620; Buerk v. Imhaeuser. American Nicholson Pa. Co. v. Elizabeth City, 6 Off. Gaz. of Patent Office, 764; Littlefield v. Perry, 21 Wall., 205, 228.) The same principle is, I think, applicable to a case of this kind. The watch is open to the manufacture of every one; and it is common to both the plaintiff's patented article and to the infringing article of the defendants. The wrong which the case shows the plaintiff to have sustained is the use of his invention in the making by the defendants of the infringing watches. They have taken his invention and used it in making the infringing watches; and it is the value of that use, the right to which belonged to the plaintiff, that they have appropriated to themselves. For this the plaintiff is entitled to recover in damages. But this rule has been disregarded, and the case does not furnish any evidence which can either support the actual finding or form the basis for a correction in this respect by the Court. The burthen, in this respect, was upon the plaintiff; and as the account of the profits made by the defendants, under the evidence, charges them with all that they have made by the use of the plaintiff's invention, and does not appear to be an inadequate compensation for the injury which he is shown to have suffered, a decree upon the basis of the computation of profits contained in the report will, in my opinion, do justice between the parties. The exception already discussed is the principal objection to the report, and covers also the third and sixth exceptions. The second exception has no foundation in the evidence or offers of the defendants. It does not appear to have been proposed to prove that the plaintiff had any license or patent fee. The offer was only to show what amount the plaintiff had recovered in another suit, which was immaterial. The fourth and fifth exceptions seem to turn upon the appreciation of evidence by the master, and raise no question requiring examination. The seventh exception is founded on an obvious mistake of the master in determining the effect of one of the exhibits. He has, by including a column of figures not forming part of the exhibit, found that the defendants had on hand 48 infring The John Farron. ing watches, whereas it, in fact, only showed 28 to be so on hand. It will be modified accordingly. The decree will separate the profits and damages awarded against all the defendants, $1,748 24, and those awarded against Imhaeuser & Hahn, $3,748 28, and will be with interest from the date of the master's report, February 19th, 1875. It must be settled upon notice, before being entered. John Van Santvoord, for the plaintiff. Arthur V. Briesen, for the defendants. THE JOHN FARRON. The case of The Lottawanna, (21 Wall., 558,) decides, that a material man furnishing repairs and supplies to a vessel in her home port, does not thereby acquire any lien upon the vessel, by the general maritime law, as received in the United States, but that, so long as Congress does not interfere to regulate the subject, the rights of material men furnishing necessaries to a vessel in her home port may be regulated, in each State, by State legislation; that such contracts are maritime, and fall within the domain of the Admiralty jurisdiction; and that, when, in such cases, a lien is given by the State laws, such lien may be enforced by the District Courts of the United States, under the 12th Rule, as modified by the Supreme Court of the United States, May 6th, 1872. The provision for a lien, made by a State lien law, will be enforced, when the contract is maritime, in the Courts of Admiralty, although the same law gives an unconstitutional power to the State Courts to proceed in rem to enforce such lien. The statute of New York, of April 24th, 1862, (Laws of 1862, p. 956, § 1,) gives a lien on a vessel for a debt contracted by her "master, owner, charterer, builder, or consignee," "or the agent of either of them," within the State, on account of labor or materials furnished in the State for repairing such vessel. H., the owner of a vessel, contracted in writing to sell her to S., and delivered possession and control of her to S., who, as her apparent owner, contracted, in New York, upon her credit, a debt for repairs to her. In the contract of sale it was agreed that S. should have possession, and might make repairs, but that such repairs should not be a lien on the vessel, or a claim against H., The John Farron. but the creditor had no notice of such agreement: Held, that there was a lien on the vessel for the debt, under such statute. (Before JOHNSON, J., Southern District of New York, November 11th, 1876.) JOHNSON, J. Since the decision of this case in the District Court, (7 Benedict, 53,) the Supreme Court of the United States, in the case of The Lottawanna, (21 Wall., 558,) has declared the law in regard to some questions about which conflicting views were entertained by different judges. It must now be deemed settled, that material men furnishing repairs and supplies to a vessel, in her home port, do not thereby acquire any lien upon the vessel, by the general maritime law, as received in the United States, but that, so long as Congress does not interpose to regulate the subject, the rights of material men furnishing necessaries to a vessel in her home port may be regulated, in each State, by State legislation; that such contracts are maritime, and fall within the domain of the Admiralty jurisdiction; and that, when, in such cases, a lien is given by the State laws, such lien may be enforced by the District Courts of the United States, 'under the 12th Rule, as modified by the Supreme Court of the United States, May 6th, 1872. This view is maintained to be the law by the Supreme Court, while admitting that the practice may be somewhat anomalous, upon the ground that it has existed from the origin of the Government, and that, whatever may have been its origin, and whether it was or was not based upon the soundest principles, it has become firmly settled, and it is now too late to question its validity. These must be accepted as the controlling views of the Supreme Court upon this subject, and must be followed by this Court. In the cases of The Edith and The Circassian, (11 Blatchf. C. C. R., 451, 472,) decided in this Court, in February, 1874, the views expressed by my learned predecessor must yield to the later judgment of the Supreme Court, in the case of The Lottawanna, in so far as they are not in harmony. The principal point of difference material in this case is in respect to the power and rightfulness of maintaining the lien |