Philp v. Nock, 84 U.S. 460 (1873)
U.S. Supreme CourtPhilp v. Nock, 84 U.S. 17 Wall. 460 460 (1873)
Philp v. Nock
84 U.S. (17 Wall.) 460
In a suit by a patentee for damages against an infringer, the plaintiff can recover only for actual damages, and he must show the damages by evidence. They cannot be left to conjecture by the jury. Where he has sought his profit in the form of a royalty paid by his licensees and there are no peculiar circumstances, the amount to be recovered will be regulated by that standard. Counsel fees cannot be included in the verdict, and an instruction which directed the jury to award to the plaintiff
"such sum as they should find to be required to remunerate him for the loss sustained by the wrongful act of the defendants and to reimburse him for all such expenditures as have been necessarily incurred by him in
order to establish his right"
was held to be erroneous as too broad and vague and as tending to lead the jury to suppose that it was their duty to allow counsel fees and perhaps other charges and expenditures equally inadmissible.
Nock brought an action in the court below against Philp and others to recover damages for the infringement of a patent granted to him by the United States for an improvement touching the lids of inkstands and the hinge whereby such lids are attached. The case came on to be tried in March, 1870, and therefore while the Patent Act of July 4, 1836, [Footnote 1] which in suits against infringers gives to patentees "the actual damages sustained" by them, was in force, a similar provision, however, being made in the subsequent Patent Act of July 8, 1870. [Footnote 2] The bill of exceptions showed that the plaintiff gave in evidence that during the term of the patent,
"the defendants had sold inkstands having hinges that were infringements of the plaintiff's patent to the number of seventy-five dozen, and that the royalty which the plaintiff received for the use of his patent was at the rate of $2 per gross."
The testimony being closed, the court instructed the jury as follows:
"If the jury shall find a verdict for the plaintiff under the foregoing instructions, they will award him such sum as they shall find to be required to remunerate him for the loss sustained by the wrongful act of the defendants, and to reimburse him for all such expenditures as have been necessarily incurred by him in order to establish his right."
To this instruction the defendant excepted.
A verdict and judgment having been given for the plaintiff in the sum of $500, the defendants brought the case here.