AMERICAN STREET FLUSHING MACH. CO. v. ST. LOUIS STREET FLUSHING MACH. CO. et al., 192 F. 121

HOOK, Circuit Judge. The American Street Flushing Machine Company appeals from a decree allowing it but a nominal sum against the St. Louis Street Flushing Machine Company and William Ratican for the infringement of letters patent No. 795,059 granted July 18, 1905. to L- F. Ottofy. The validity of the third claim of the Ottofy patent was upheld by this court upon appeal from a preliminary injunction, but its scope was reduced to very narrow limits. 86 C. C. A, 340, 156 Fed. 574.

The claim was for a combination in a traveling street washing machine— “of a tank adapted to contain water under pressure and mounted upon forward and rear supports, of a nozzle or nozzles located sufficiently near the plane of tbe points upon which the machine is supported to be Substantially concealed from view and having narrow elongated delivery apertures which open laterally toward the front of the machine and are substantially parallel to said plane, said nozzles being constructed and positioned to deliver water under pressure at tbe side or sides of the machine nearly parallel to said plane, forward and laterally of the rear support and avoiding the front support.” The novel feature upon which alone the combination was sustained was in the means described of delivering a flat stream of water nearly parallel to the surface of the street.

This was by means of a nozzle •connected with the tank above and having a narrow elongated orifice, and adjusted upon its connection at such an angle that the stream of water would be nearly parallel to the plane of the street. From this it follows that a nozzle which did not have a slot or narrow elongated orifice would not infringe; also, that a nozzle having an orifice like Ottofy's but so adjusted as not to deliver the water nearly parallel to the street would not infringe.

These conclusions of the court with respect to the scope of the claim were necessary in view of the prior art and the rulings of the Patent Office. After the patent was sustained to this extent, the cause was referred to a master to find the damages and profits to be assessed against the infringers. The master reported no evidence of damages and that profits had been secured by the St. Eouis Company amounting to $4,950, and by Ratican $15,-039.03, and recommended a decree against them accordingly.

Upon exceptions the trial court reduced the awards to $1 (180 Fed. 759), holding that there was not sufficient proof of the amount of profits realized from the manufacture and use of the particular nozzle device upon which alone the patent stood, but that the profits assessed related to the manufacture and use of an entire street washing wagon and appliances; also, that it was the duty of the complainant to make the apportionment, and it had not done so. We have had the question of the burden of apportionment before us three times: Westinghouse Electric & Mfg. Co. v. Wagner, etc., Co., 97 C. C.

A. 621, 173 Fed. 361; Brown v. Lanyon Zinc Co., 102 C. C. A. 497, 179 Fed. 309; Dowagiac Mfg. Co. v. Plow Co., 105 C. C. A. 526, 183 Fed. 314. The conclusions there reached control the case at bar, and render unnecessary a consideration of the other questions presented by counsel. If the Ottofy device as limited had a special value when used as but a small part of a large completed structure, the complainant as owner of the patent should have introduced evidence of the profits realized by the infringer and ascribable to the particular device in question, so that they could be ascertained and stated by the master.

We agree with the trial court that the evidence before the master was insufficient for that purpose. In this connection 'it may be said that the nozzles furnished with the wagons sold by the defendant company were adjustable in respect of the particular angle at which the user might desire to deliver the water flowing through them to the street. The decree is affirmed.'