Justice Story on Noneconomic Damages in Patent Cases

A few weeks ago I published a paper titled Damages for Noneconomic Harm in Intellectual Property Law, 72 Hastings L.J. 1055-1120 (2021) (available here and here, and previously noted on this blog here).  A few days ago, in the course of researching something else, I was reading a portion of William Robinson's 1890 treatise on the law of patents when I came across the quotation below from Justice Story's opinion in Whittemore v. Cutter, 29 F. Cas. 1123 (C.C.D. Mass. 1813)--which I would have cited in my article, had I been aware of it.  To cut to the chase, Justice Story didn't think it would be appropriate to award damages for emotional harm in a patent infringement.  As discussed in my paper, that is my view as well, though courts in some countries, and some scholars, have expressed the opposite view.  Of course, Justice Story's views about what patent law did and didn't tolerate in 1813--in a case in which he was sitting as a trial court judge--are not binding precedent, though it's also fair to note that courts have continued to cite Story's views on IP and other matters to the present day.  Anyway, here's the quote, with the most relevant portion in italics:

As to the rule, by which the plaintiff's damages are to be estimated, it is clear by the statute, that only the actual damages sustained can be given. By the terms “actual damages,” in the statute, are meant such damages, as the plaintiffs can actually prove and have in fact sustained, as contradistinguished to mere imaginary or exemplary damages, which in personal torts are sometimes given. The statute is highly penal, and the legislature meant to limit the single damages to the real injury done, as in other cases of violation of personal property, or of incorporeal rights. In mere personal torts, as assaults and batteries, defamation of character, &c. the law has, in proper cases, allowed the party to recover not merely for any actual injury, but for the mental anxiety, the public degradation and wounded sensibility, which honorable men feel at violations of the sacredness of their persons or characters. But the reason of the law does not apply to the mere infringement of an incorporeal right, such as a patent, and the legislature meant to confine the damages to such a sum, as would compensate the party for his actual loss. If the jury are of opinion, that an user of the machine is actually proved in this case, the rule of damages should be the value of the use of such a machine, during the time of the illegal user. If the jury are of opinion, that a making of the machine only is proved, as there is no evidence in the case, to show any actual damages by the making, they ought to give nominal damages to the plaintiffs. For where the law has given a right, and a remedy for the violation of it, such violation of itself imports damage; and in the absence of all other evidence, the law presumes a nominal damage to the party.

As the song goes, "Everything old is new again"--the relevance of which to the law of patent damages I previously noted here.