(dissenting). I cannot agree with the conclusion of the court as to the extent of the complainant’s recovery. The value of a design patent is as a seller of the article to which the design is applied. The profits attributable to it cannot be traced as can profits due to greater economy, durability, or efficiency in the case of -other patents. So long as the law required the owner of a design patent to do this, he could get only a nominal recovery. It was to correct this rule as laid down in Dobson v. Dornan, 118 U. S. 10, 6 Sup. Ct. 946, 30 L. Ed. 63, that Congress enacted chapter 105, Laws 1887. Untermeyer v. Freund (C. C.) 50 Fed. 77. The act gives the patentee $250 as a penalty, and in case the total profit from the manufacture or sale of the article to which the design “has been applied” exceeded that sum, then all the profits in excess thereof. The alternative was either to give the design patentee nothing or to give him all the profits. The latter rule is no doubt hard, but no more so than that which requires the infringer of a copyright to account for all the profits of his publication when the profits due to the infringement cannot be separately ascertained. Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547. It is necessary if the owner of the copyright is to have any protection at all. It is true that the patent under consideration is for a design for a piano case, but the article which the complainant *906manufactures and sells is a piano and the article to which the design is applied is a piano. The complainant neither manufactures the case nor sells it separately. I think it is therefore entitled to all the profits derived from the sale of pianos in the case.