
    IMPERIAL MACHINE COMPANY v. THE UNITED STATES
    [No. C-321.
    Decided May 9, 1927]
    
      On the Proofs
    
    
      Patents; vegetable-peeling machine. — See Imperial Machine & Foundry Corporation v. United States, ante, p. 491.
    
      The Reporter’s statement of the case:
    
      Messrs. Ralph M. Smyder and Marrvvn Farrington for the plaintiff. Mr. Wallace R. Lane and King <& Ki/ng were on the briefs.
    
      Mr. J. F. Mother shea/1 ^ with whom was Mr. Assistant Attorney General Herman^ J. Galloway, for the defendant. Mr. H. E. Knight was on the brief.
    The court made special findings of fact, as follows:
    I. The Imperial Machine Company, plaintiff herein, was a corporation organized under the laws of the State of New Jersey, with its principal place of business at Lindenhurst, Long Island, State of New York. On or about September 27, 1917, the said corporation sold its entire business and assets, including all its patents, among them Letters Patent No.! 809582, hereafter described, to the Imperial Machine & Foundry Corporation, a corporation organized under the laws of the State of New York. The charter of the said Imperial Machine Company was revoked by the Secretary of State of the State of New Jersey on or about the 28th day of January, 1918, for nonpayment of taxes due said State, but said corporation retains its corporate existence for the purposes of this suit.
    II. On January 7, 1905, Henry Eobinson, a citizen of the United States, applied to the Commissioner of Patents for a patent on a machine for peeling vegetables, and on this application Letters Patent No. 809582 were issued to him January 9, 1906. A copy of the specifications of the said letters patent and drawings annexed thereto is attached to the petition as “ Exhibit A ” and made a part of this finding, by reference thereto.
    
      On January 16,1906, the said Robinson assigned his right, title, and interest in and to the said patent to the Robinson Machine Company, a corporation of the State of New Jersey.
    On December 28, 1906, the Robinson Machine Company assigned its right, title, and interest in and to said patent to the Imperial Machine Company, plaintiff herein.
    III. Prior to January 7, 1905, the date of filing the application for said letters patent, there were in the art relating to potato and vegetable-peeling machines the inventions and devices illustrated and described by the following letters patent:
    United States No. 91238 to Lehman.
    United States No. 100348 to Williams.
    United States No. 115264 to Mayhew.
    United States No. 119746 to Culver.
    United State,s No. 129741 to Loy & Baker.
    United States No. 223056 to Mills.
    United States No. 237599 to Raymond.
    United States No. 293047 to Mackey.
    United States No. 336533 to Sylvester.
    United States No. 524420 to Jaeger.
    United States No. 551526 to Buist & Schmidt.
    United States No. 686576 to Blache.
    United States No. 777590 to DeBonneville.
    United States No. 782852 to Imm.
    United States No. 860349 to Brenizer.
    British No. 10325 to De Pas,s, issued 1886.
    British No. 5435 to Schulte, issued 1886.
    British No. 3040 to Lowe, issued 1894.
    IV. The machine illustrated and described in the said Letters Patent 809582 consists of a cylinder at the bottom of which is mounted a rotary disk having an abrading-striated surface provided with one or more rounded humps or raised portions which slope from the circumference of the disk towards the main portion thereof. The function of the rounded and sloping humps is to produce the necessary agitation and circulation of the mass of vegetables whereby all the vegetables are brought into contact with the abrading disk for the proper length of time to peel them.
    
      Y. The plaintiff and its predecessor,s made paring machines according to the design covered by the said patent and sold them throughout the United States and in foreign countries, and continuously, since the issuance of the said patent, marked the said machines with the date and number of the said patent.
    VI. The several and successive owners of the said patent have never granted licenses to make, use, or vend the device covered thereby.
    VII. On numerous occasions from the year 1906 to the time it sold its business and assets the plaintiff prepared and sent circulars to persons, firms, and corporations, including the makers and sellers of the “American ” machine, hereinafter referred to, warning them not to make, sell, or use apparatus infringing plaintiff’s aforesaid patent, and has also verbally and in writing repeatedly and continuously during said period informed purchasing officers of various departments, bureaus, and independent agencies of the United States Government of plaintiff’s rights under the said patent, and warned them not to purchase machines that infringed the same.
    VIII. Since the year 1916 certain persons, firms, and corporations have been making and selling potato-peeling machines under trade names, respectively, of “American,” “ Sim-Peel-O,” and “ Economical.”
    Some of the said “ American ” machines contained as their essential part an abradant disk of the kind and character illustrated and described in the specifications and drawings of said Letters Patent No. 809582.
    Suits were brought by the plaintiff or its predecessors for injunction and accounting against the manufacturers and sellers and some users of the said “American ” machines and decrees obtained therein sustaining the validity of Letters Patent No. 809582, holding certain disks contained in said “American ” machine to be an infringement thereof, and awarding profits and damages. Owing to the insolvency of the defendants neither plaintiff nor its predecessors have received from the said manufacturers any damages or profits as a result of the said litigation.
    
      IX. Since the year 1916 the defendant has bought for its use and has received from the manufacturers or sellers and used some of the said “American ” machines that contained the said infringing abradant disk. The number of said machines and disks so purchased, received, and used does not appear, and there is no satisfactory proof of the dates of such purchase, receipt, and use.
    The court decided that plaintiff was entitled to recover.
   Graham, Judge,

delivered the opinion of the court:

This case involves the question of the infringement by the defendant of patent No. 809582, and is controlled by the opinion this day handed down in the case of Imperial Machine & Foundry Corporation v. United States, No. C-320, ante, p. 491.

The court has found in this case that the defendant purchased and used machines which infringed on the plaintiff’s patent, and the case is remanded for further proceedings on the question of the amount of damages for infringement.

Moss, Judge; Hay, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  