NEW AMENDMENT OF THE DESIGN PATENT LAW.
An amendment of the patent law relating to design patents has lately passed both houses of Congress and received the approval of the President. The object of the amendment is to correct a defect in the law, which prevented the patentee from collecting damages in cases of infringement.
Under the old law, the Supreme Court held that in the case, for example, of a carpet manufacturer who complained of an infringement of his design or pattern of carpet, the complainant must clearly prove what portion of the damage, or what portion of the profit made by the infringer, was due to the use of the patented design. It was practically impossible to make this showing. Hence the infringer could imitate the patented design without liability, and the law was a nullity.
Under the provisions of the new law, the infringer is obliged to pay the sum of $250 in any event; and if his profits are more than that sum, he is compelled, in addition, to pay all excess of profits above $250 to the patentee. It is believed that the penalty of $250, irrespective of profits, will put a stop to the wholesale system of infringement heretofore carried on by unscrupulous persons.
The following is the text of the new law:
An act to amend the law relating to patents, trade marks, and copyright.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter, during the term of letters patent for a design, it shall be unlawful for any person other than the owner of said letters patent, without the license of such owner, to apply the design secured by such letters patent, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or to sell or expose for sale any article of manufacture to which such design or colorable imitation shall, without the license of the owner, have been applied, knowing that the same has been so applied. Any person violating the provisions, or either of them, of this section shall be liable in the amount of two hundred and fifty dollars; and in case the total profit made by him from the manufacture or sale, as aforesaid, of the article or articles to which the design, or colorable imitation thereof, has been applied, exceeds the sum of two hundred and fifty dollars, he shall be further liable for the excess of such profit over and above the sum of two hundred and fifty dollars; and the full amount of such liability may be recovered by the owner of the letters patent, to his own use, in any circuit court of the United States having jurisdiction of the parties, either by action at law or upon a bill in equity for an injunction to restrain such infringement.
Sec. 2. That nothing in this act contained shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any owner of letters patent for a design, aggrieved by the infringement of the same, might have had if this act had not been passed; but such owner shall not twice recover the profit made from the infringement.
Approved, February 4, 1887.