Opinion of the Court.

this may be, the method described by Cowles differs only in degree and not in kind from that described by Holmes. In other words, it is a more thorough doing of that which Holmes had already done, and, therefore, involving no novelty within the meaning of the patent law. Indeed, we are not satisfied that the method employed by Holmes did not, for all practical purposes, saturate the first layer of braid as completely as if the second coat had been applied while the first was still wet. The process and the results in both cases are practically the same, viz.: protection, insulation and incombustibility. There were certain affidavits introduced which tended to show that the Holmes insulator was not incombustible; but in view of the experiments made by Mr. Earle, the defendant's expert, by applying the same current of electricity to wires insulated by these different methods, we incline to the opinion that the method practised by Mr. Holmes was nearly, if not quite, as efficient in this particular as the other. If his testimony be true, and no attempt is made to show that it is not, it is difficult to see, even if his insulator were not incombustible, that Mr. Cowles did more than make use of his process in a somewhat more efficient manner.

In the case of Gandy v. Main Belting Company, recently decided, 143 U. S. 587, the patentee found that the canvas theretofore manufactured was unfit for use as belting by reason of its tendency to stretch, and to obviate this he changed the constitution of the canvas itself by making the warp threads heavier and stronger than the weft; in short, he made a new canvas constructed upon new principles, and accomplishing a wholly new result. That case is not a precedent for this.

It is true that the insulator used by Holmes was not intended to be, and perhaps was not known to be, incombustible, since this feature of its incombustibility added nothing to its value for protecting a burglar-alarm wire, which carries a current of comparatively low tension; but, as already observed, the testimony indicates that the insulator employed by him was in fact nearly, if not quite, as incombustible as that made by the plaintiff under the Cowles patent. If this be so, and

VOL. CXLIV-2

Opinion of the Court.

the two insulators are practically the same in their method of construction, it is clear that Cowles has no right to claim the feature of incombustibility as his invention, since nothing is better settled in this court than that the application of an old process to a new and analogous purpose does not involve invention, even if the new result had not before been contemplated. It was said by Chief Justice Waite in Roberts v. Ryer, 91 U. S. 150, 157, that "it is no new invention to use an old machine for a new purpose. The inventor of a machine is entitled to all the uses to which it can be put, no matter whether he had conceived the idea of the use or not."

In Pennsylvania Railway v. Locomotive Truck Co., 110 U. S. 490, 494, the adoption of a truck for locomotives which allowed a lateral motion was held not to be patentable, in view of the fact that similar trucks had been used for passenger cars. All the prior cases are cited, and many of them reviewed, and the conclusion reached that "the application of an old process or machine to a similar or analogous subject, with no change in the manner of application and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result had not before been contemplated." The principle of this case was expressly approved and adopted in that of Miller v. Foree, 116 U. S. 22, and has been frequently applied in the administration of patent law by the Circuit Courts. Crandall v. Watters, 20 Blatchford, 97; Ex parte Arkell, 15 Blatchford, 437; Blake v. San Fran cisco, 113 U. S. 679; Smith v. Elliott, 9 Blatchford, 400; Western Electric Company v. Ansonia Co., 114 U. S. 447; Spill v. Celluloid Manufacturing Co., 22 Blatchford, 441; Sewall v. Jones, 91 U. S. 171.

On the other hand, if an old device or process be put to a new use which is not analogous to the old one, and the adaptation of such process to the new use is of such a character as to require the exercise of inventive skill to produce it, such new use will not be denied the merit of patentability. That, however, is not the case here, since the Cowles process had been substantially used by Holmes for the same purpose of insulating an electric wire, and the discovery of its incom

Syllabus.

bustible feature involved nothing that was new in its use or method of application.

The utmost that can be said for Cowles is that he produced a somewhat more perfect article than Holmes, but as was said by this court in Smith v. Nichols, 21 Wall. 112, 119, "a mere carrying forward, or new or more extended application of the original thought, a change only in form, proportions or degree, the substitution of equivalents, doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent." It was held in this case that where a textile fabric, having a certain substantial construction, and possessing essential properties, had been long known and in use, a patent was void when all that distinguished the new fabric was higher finish, greater beauty of surface, the result of greater tightness of weaving, and due to the observation or skill of the workman, or to the perfection of the machinery employed. See also Morris v. McMillin, 112 U. S. 244; Busell Trimmer Co. v. Stevens, 137 U. S. 423, and cases cited.

The decree of the Circuit Court is, therefore,

MR. JUSTICE FIELD dissented.

LARKIN v. UPTON.

Affirmed.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA.

No. 175. Argued March 1, 1892. Decided March 14, 1892.

Where special findings are irreconcilable with a general verdict, the former control the latter.

If the findings are fairly susceptible of two constructions, the one upholding and the other overthrowing the general verdict, the former will be accepted as the true construction.

The top or apex of a vein must be within the boundaries of the claim, in order to enable the locator to perfect his location and obtain title; but

Opinion of the Court.

this apex is not necessarily a point, but often a line of great length, and if a portion of it is found within the limits of a claim, that is sufficient discovery to entitle the locator to obtain title.

PRIOR to March, 1882, plaintiffs in error, defendants below, filed their application in the United States land office at Helena, Montana, for a patent to the Smelter lode claim. Defendants in error, plaintiffs below, "adversed," claiming as owners of a conflicting location, called the Comanche lode claim, and thereafter commenced this action in the District Court of the Second Judicial District of the Territory of Montana to determine the right of possession to the disputed territory, an area, as alleged, of seven and seventy-nine one-hundredths acres. There were two trials in the District Court, in each of which the verdict and judgment were in favor of the plaintiffs. The first judgment was reversed by the Supreme Court of the Territory, and a new trial ordered. 5 Montana, 600. The second judgment was affirmed by that court, 7 Montana, 449, which judgment of affirmance was brought to this court by writ of error.

Mr. W. M. Stewart (with whom was Mr. M. Kirkpatrick on the brief) for plaintiffs in error.

Mr. S. S. Burdett and Mr. W. W. Dixon (with whom was Mr. M. F. Morris on the brief) for defendants in error.

MR. JUSTICE BREWER delivered the opinion of the court.

The first judgment was reversed by the Supreme Court of the Territory, on the ground that there had been no discovery of a vein or lode within the Comanche territory at the time of the location of that claim. Immediately north of the Comanche was the Shannon claim, which at the time of the commencement of this suit had been surveyed and patented; and it appears from the opinion of the Supreme Court, that at the first trial the testimony showed that the discovery shaft of the Comanche was wholly within the limits and boundaries of the Shannon claim. The contest at the second trial was as to the position of that discovery shaft and of the apex of

Opinion of the Court.

the vein disclosed by it. Unquestionably if not on the boundary line between the Comanche and Shannon claims, the shaft was very close to it. The testimony of the defendants tended to show that it was wholly on the Shannon claim; that of the plaintiffs, that it was partly on both claims, extending some 19 inches in width into the Comanche claim, and that the apex of the vein was within the limits of these 19 inches.

The jury returned a general verdict for the plaintiffs, and also made certain findings of fact at the instance of the respective parties. It is doubtless true that where special findings are irreconcilable with a general verdict, the former control the latter; and upon this rule plaintiffs in error rely for a reversal. It is also true that if the findings are fairly susceptible of two constructions, one upholding and the other overthrowing the general verdict, the former will be accepted as the true construction, because it will not be presumed that the jury had different intentions in the findings and in the verdict. St. Louis & San Francisco Railway Co. v. Ritz, 33 Kansas, 404. So that if the meaning of these findings be doubtful, we should adopt that which conforms to and upholds the verdict.

It is unquestioned law that the top or apex of a vein must be within the boundaries of the claim in order to enable the locator to perfect his location and obtain title. Turning to the findings, these three are all that are pertinent to this question-two in response to interrogatories submitted by the plaintiffs, and the other to one submitted by the defendants:

"1st. Did the locators of the Comanche lode claim, prior to the location of said claim, discover in the shaft claimed by them as discovery shaft a vein or crevice of quartz or ore, with at least one well-defined wall on a lode or vein of rock in place bearing gold, silver or other valuable mineral deposits? "Answer. Yes.

"2d. If your answer to the foregoing interrogatory be 'yes,' then answer: Was any part of such vein or lode discovered by the locators of said Comanche claim at the point of discovery, south of the south boundary line of the Shannon lode claim as patented and within the limits of the said Comanche lode claim as located?