Page:Federal Reporter, 1st Series, Volume 4.djvu/436

422 FEDERAL REFOBTEB. �saw in use prîor to the discovery by Sampson, is true, as regards the description of devices, and the time they were seen in use, you will judge whether the devices covered by the plaintiff's patent were new at the time of the alleged inven- tion by Sampson, or whether they were old, as alleged by the defendants. �As respects the open jàw, which virtually constitutes the first claim of the patent, there would seem to be no room for doubt that it was not new,, and the plaintiff's counsel, with commendable candor, bas declared in your presence that he cannot, in view of the evidence, urge you to find that it was new. Thus the question seems to be narrowed down to the inquiry whether the brace, or pôle support, with its posterior connection or rest, which virtually constitutes its second claim of the patent, was new at the time of the alleged dis- covery by Sampson. I repeat to you, the case, after the close of the testimony and the summing up of counsel, seems to be narrowed down to the question whether or not this device, which constitutes the second claim of the patent, was old at the time of Sampson's alleged discovery. If, therefore, a careful examination of ail the evidence satisfies you that this device, which constitutes the second claim, was not new, you will decide this question in the plaintiff's favor, and find that the patent is valid to this extent. If you find that this [referring to the model of it] was also old, then you will find that the patent is invalid as respects both claims. If you do not find that this was old, but conclude that Sampson first invented and applied it, then your verdict, as I have sug- gested, will be in favor of the plaintiff, and you will treat the patent as valid to that extent. But if the patent is valid only to this extent, (and it seems clear that it is not valid be- yond this extent,) then, inasmiich as there is no evidence of a license fee which will enable you to ascertain any sum in which the plaintiff bas been damnified or injured on this account, your verdict must be for the plaintiff for nominal damages only, Thus it would seem that in no event, under the evidence, and the plaintiff's position here, can you render a verdict for the plaintiff for anything beyond nominal dam- ����