One is not liable in damages as an in fringer if the patentee put his invention on the market not marked patented (with date), unless he had notice of the patent; Dunlap v. Schofield, 152 U. S. 244, 14 Sup. Ct. 576, 38 L. Ed. 426; Coupe v. Royer, 155 U. S. 584, 15 Sup. Ct. 199, 39 L. Ed. 263.
The burden is on the complainant to prove actual or constructive notice ; Dunlap v. Scho field, 152 U. S. 244, 14 Sup. Ct. 576, 38 L. Ed. 420.
Speaking in a general sense, it is doubtless true that the test of infringement in respect to the claims of a design-patent is the same as in respect to a patent for an art, machine, manufacture, or composition of matter ; but it is not essential to the identity of the de sign that it should be the same to the eye of an expert. If in the eye of an ordinary observer, giving such attention as a purchas er usually gives, two designs are substan tially the same; if the resemblance is such as to deceive such an observer and sufficient to induce him to purchase, one supposing it to be the other, the one patented is infringed by the other ; Miller v. Smith, 5 Fed. 359; Gorham Mfg. Co. v. White, 14'Wall. (U. S.) 511, 20 L. Ed. 731.
In granting letters patent to authors and inventors for the exclusive right to their re spective writings and discoveries, the United States reserves no right to publish such writ ings or use such inventions; James v. Camp bell, 104 U. S. 356, 26 L. Ed. 786.
The United States is liable, under its con tract, for the use of a patented article, but it is not liable in tort; U. S. v. Mfg. Co., 156 U. S. 552, 15 Sup. Ct. 420, 39 L. Ed. 530. While it has no right to use a patented de vice, yet no suit will lie against it without its consent ; Belknap v. Schild, 161 U. S. 10, 16 Sup. Ct. 443, 40 L. Ed. 599; jurisdiction to recover royalties or compensation under a contract is in the court of claims; U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. 104, 32 L. Ed. 442. It is doubtful whether a govern ment official who uses an invention solely for the benefit of the government can be sued for infringement, and whether the case is not one solely for the court of claims ; James v. Campbell, 104 U. S. 356, 26 L. Ed. 786.
Where an officer of the United States uses, in his official capacity, a patented device made and used by the United States, the patentee is not entitled to an injunction, and cannot recover profits, if the only profit is a saving to the United States; but such offi cers, although acting under its orders, are personally liable to be sued for their own infringement of a patent ; Belknap v. Schild, 161 U. S. 10, 16 Sup. Ct. 443, 40 L. Ed. 599; see Birk v. U. S., 163 U. S. 49, 16 Sup. Ct. 911, 41 L. Ed. 66. A city is liable for an in fringement by its officers for its benefit ; Munson v. City of New York, 3 Fed. 338, 5 Bann. & A. 486.
The managing officers of corporations have been, in some cases, joined as defendants in cases involving the infringement of patents; Iowa Barb-Steel Wire Co. v. Wire Co., 30 Fed. 123; Nichols v. Pearce, 7 Blatchf. 5, Fed. Cas. No. 10,246; contra, Matthews & Wil lard Mfg. Co. v. Lamp Co., 73 Fed. 212; but in Glucose Sugar Refining Co. v. Preserving Co., 135 Fed. 540, Adams, D. J., after con sidering and citing many authorities, con cludes that the weight of authority, and es pecially of the more recent cases, as well as reason, is against the joinder of officers of a corporation in ordinary cases. He ad mits that there is much contrariety of opinion. This case was followed in American Bank Protection Co. v. Protection Co., 181 Fed. 350, even where the directors had signed indem nity agreements to purchasers of infringing articles. In Whiting Safety Catch Co. v. Wheeled Scraper Co., 148 Fed. 396, the joinder was sustained because the individual. defendant owned all the corporate stock, di rected Its affairs, and conspired with it to commit the infringement.
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