Gone, J. This is a motion to increase the damages in an equity action for the infringement of a patent, under sections 4919, 4921, Rev. St. The facts appear sufficiently in 12 Fed. Rep 875, 32 Fee Rep. 293, 34 Fed. Rep. 40, and ante, 301. The complainant bases the application upon the long pendency of the controversy, the persistent resistence of the defendant, the voluminous record, and the large sums, in all $6,738, paid by complainant in the prosecution of the suit.
It is also argued that the master’s report is most conservative, and it is obvious from the testimony that the complainant has suffered enormous damages, for which no compensation is given, owing to the difficulty of making legal proof thereof.
On the other hand, it is urged that the delay in terminating the controversy was not attributable to any fault of the defendant; that the propriety and wisdom of the defense interposed by him is demonstrated by the fact that, although the bill was based upon six patents, the complainant succeeded upon one only, and that one is now conceded to be void.
The defendant insists further that he was warranted in contesting the proceedings before the master, as shown by the fact that the complainant, though seeking to recover upon a great number of articles manufactured by the defendant, was limited by the master to a subdivision of a single variety of goods. Although the defense that the patent was void- as a reissue was set up in the answer, the original patent was not put in evidence.
The court, 304 upon the hearing of the exceptions to the master’s report, decided that •the reissue was manifestly void, but that it was then too late to consider the evidence, for the reason that the defendant had been guilty of inexcusable laches in not presenting it to the court at an earlier day: But 'when the court is asked to exercise an exceptional discretion, and compel the defendant to pay extraordinary damages, it is surely the duty of the court to take into consideration the fact that the patent upon which the application is founded is void, even though the proof which demonstrates its invalidity is then, for the first time, brought to the attention of the court.
Upon other grounds, also, the motion must be denied. It is true that this litigation has been protracted, laborious, and expensive. It is true that complainant’s decree is not compensative, when compared with the labor put forth in obtaining it. But it is thought that the defendant’s course, though annoying to the complainant, was not, in a legal sense, wanton, unjustifiable, or vexatious. There was no moment when the defendant could with safety have abandoned the contest, or been less active in his defense.
The proceedings before the master were animated and unusually complicated, but this was due more to the nature of the controversy than to the conduct of either party It cannot be said that the defendant acted in bad iaith. The issues before the inaster Were sharply drawn. The testimony was evenly balanced. The defendant unquestionably considered himself in the right, and was justified in pressing his views upon the attention of the master and the court.
The mere fact that a defense is unsuccessful does not warrant the court in punishing the defendant for interposing it. If he acts fairly and honestly in resisting the demands of his adversary, he does nothing worthy Of censure, even though the debatable ground is contested inch by inch.
On the contrary, where it is apparent that the defendant has been acting fraudulently and in bad faith; that he has been “stubbornly litigious;” that his defense is without merit, and i’s interposed for delay, or to harass and,injure the plaintiff and cause him unnecessary annoyance and •expense; where, in other words, the defendant’s conduct is unlawful, unconscionable, and deserves punishment,—the statutory relief should be given. Unless the cause is one of exceptional hardship, the motion should not be granted.
Zane v. Peck, 13 Fed. Rep. 475; Schwarzel v. Holenshade, 3 Fish. Pat. Cas. 116; Brodie v. Mining Co., 4 Fish. Pat. Cas. 137; Guyon v. Serrell, 1 Blatchf, 244; Sanders v. Logan, 2 Fish. Pat. Cas. 167; Livingston v. Woodworth, 15 How. 546; Peek v. Frame, 9 Blatchf. 194. The limited number of reported cases upon this subject is of itself proof of the care with which the courts have exercised the discretion given by the statute. The motion is denied.
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