10 REPORT OF THE PATENT COMMITTEE 



If proof is not offered or, in the absence of adequate proof of the amount 

 that should be awarded as damages or profits, the court, on due proceedings 

 had, may adjudge and decree to the owner payment of a reasonable royalty 

 or other form of general damages. 



This proposed amendment would enable the patentee in all suits 

 where the patent has been found valid and infringed to recover at least 

 a reasonable royalty, and would provide a money recovery in the great 

 majority of patent suits where no recovery would otherwise be possible. 

 The Committee believes that the comparative certainty of financial 

 return would answer one of the most common and strongest reproaches 

 against the patent system, namely that a patent does not ordinarily 

 pay the inventor any money, and it believes that the incentive to 

 invent would accordingly be greatly increased. 



There are some cases in which it seems to many who are familiar 

 with such matters as though the courts were inclined to go to the other 

 extreme and award damages out of all proportion. Where a complainant 

 has shown that profits have been made by the use of an article patented 

 as an entirety, the infringer is liable for all the profits unless he can show 

 and the burden of proof is on him to show that a portion of them is 

 a result of some other invention used by him. If the infringer cannot 

 show what proportion of the profits is due to such other invention, then 

 all his profits must go to the complainant. Any rule by which the entire 

 profits are given to a patentee in the absence of proof that they are all 

 due to the invention of the patent sued upon, is unfortunate and some- 

 times very unjust. The proposed amendment to the statute would 

 permit a court under these circumstances to do substantial justice even 

 though it could not be mathematically exact. In other words, the 

 amendment to the statute would enable a court to avoid awarding 

 either too much or too little. 



CONCLUSION 



Your Committee, believing that the American patent system is 

 vitally useful in our system of government, therefore recommends that 

 the reforms herein discussed be enacted into law. 



Your Committee also recommends that this report be approved by 

 the National Research Council and that the Committee be continued 

 for the purpose of arousing and coordinating interest in and support for 



