Page:Federal Reporter, 1st Series, Volume 8.djvu/821

OABNBIOK V. H EESSON. �the infnngmg saw was sold, as the measure of thq oordplainant's damages or loss. Upon this basis the master has assessedthe dam- ages. He has taken the whole number of infringing saws made and sold by the defendant, and in view of the looalities where thetsales were made, the readiness and facilitiea of the complainant for sup- plying the market in those localities, and the strong probability^lthere- fore, that it would have supplied it, if it had not been occupied by the defendant, has allowed the diflPerence between the cost and market priees as the aggregate amoijnt of the complainant's damages. We cannot say that this is unwarranted by the proofsv ' . ..; - �The exceptions are therefore overruled, the master's report is con- firmed, and a decree will be entered for the damages reported, with �COBtS. ���Caknrick and andther v. McKesson and another. �(Circuit Court, ^. D, Nevi York. July 7, 1881.),. �h Lbttbbs Patent — Dbfencbof Prior Patents and PtrBiiieATipNB^PtEADiNfl Di Equitt tindbb Rev. St. j 4920, Subd. 3. �The def ences of a prior patent or previous description in a ptinted publication, specifled in subdivision 3' of section 4O20 of the Revised Statutes, must, in a suit in eciuity, he set up in an answer and not in a technical plea. �J. A. Whitney, for plaintiffs. �F. H. Betts, for defendants. �Blatchford, C. J. The purport and object of the plea in this case seem to be to put in evidence certain specified patents and publica- tions which the plea alleges existed prior to the original patent sued on, and describe and show inventions and subject-matters embraced and contained in the reissue. These patents and publications are set up in the plea as showing that the reissue is not for the same invention as the original patent, "but embraces and contains" what is found in such prior patents and publications. It does not foljow that because what is found in the reissue is found in patents and publications which existed before the date of the original patent, the reissue is not for the same invention as the original, because, equally well, what is found in such patents and publications may be found in the original ; and it is not alleged in the plea that what is bo found in such prior patents and publications is not found in the oriiginal. It ia true that the plea says that the reisaue contains matter not known to, or invented by, the patentees at the date of the original, and mat- ��� �