And Lord Atkinson said:

In their process this mysterious affinity of oil for the metallic particles of the ore is availed of, yet the oil is used in such relatively infinitesimal quantities, that the metallic particles are only coated with a thin film of it, and the lifting force is found not in the natural buoyancy of the mass of added oil, but in the buoyancy of air bubbles, which, introduced into the mixture by the more or less violent agitation of it, envelop or become attached to, the thinly oiled metallic particles, and raise them to the surface, where they are maintained by what is styled the surface tension of the water.

The record shows not only that the process in suit was promptly considered by the patentees as an original and important discovery, but that it was immediately generally accepted as so great an advance over any process known before that, without puffing or other business exploitation, it promptly came into extensive use for the concentration of ores in most, if not all, of the principal mining countries of the world, notably in the United States, Australia, Sweden, Chile, and Cuba, and that, because of its economy and simplicity, it has largely replaced all earlier processes. This, of itself, is persuasive evidence of that invention which it is the purpose of the patent laws to reward and protect. (Diamond Rubber Co. v. Consolidated Tire Co., C. D., 1911, 538; 166 O. G., 251; 220 U. S., 428; Carnegie Steel Co. v. Cambria Iron Co., C. D., 1902, 592; 99 O. G., 1866; 185 U. S,. 403; The Barbed Wire Patent, C. D., 1892, 299; 58 O. G., 1555; 143 U. S., 275; Smith v. Goodyear Dental Vulcanite Co., C. D., 1877, 171; 11 O. G., 246; 93 U. S., 486.)

The claim that the patentees of the patent in suit are not the original discoverers of the process patented because an employee of theirs happened to make the analyses and observations which resulted immediately in the discovery, cannot be allowed. The record shows very clearly that the patentees planned the experiments in progress when the discovery was made; that they directed the investigations day by day, conducting them in larger part personally and that they interpreted the results. Agawam Company v. Jordan (7 Wall., 583–603) rules this claim against the defendant.

Equally untenable is the claim that the patent is invalid for the reason that the evidence shows that when different ores are treated preliminary tests must be made to determine the amount of oil and the extent of agitation necessary in order to obtain the best results. Such variation of treatment must be within the scope of the claims, and the certainty which the law requires in patents is not greater than is reasonable, having regard to their subject-matter. The composition of ores varies infinitely, each one presenting its special problem, and it is obviously impossible to specify in a patent the precise treatment which would be most successful and economical in each case. The process is one for dealing with a large class of substances

and the range of treatment within the terms of the claims, while leaving something to the skill of persons applying the invention, is clearly sufficiently definite to guide those skilled in the art to its successful application, as the evidence abundantly shows. This satisfies the law. (Mowry v. Whitney, 1 O. G., 499; 14 Wall., 620; Ives v. Hamilton, C. D., 1876, 459; 10 O. G., 336; 92 U. S., 426, and Carnegie Steel Co. v. Cambria Iron Co., C. D., 1902, 592; 99 O. G., 1866; 185 U. S., 403.) The evidence of infringement is clear.

While we thus find in favor of the validity of the patent, we cannot agree with the district court in regarding it valid as to all of the claims in suit. As we have pointed out in this opinion there were many investigators at work in this field to which the process in suit relates when the patentees came into it, and it was while engaged in study of prior kindred processes that their discovery was made. While the evidence in the case makes it clear that they discovered the final step which converted experiment into solution, "turned failure into success," (The Barbed Wire Patent, C. D., 1892, 299; 58 O. G., 1555; 143 U. S., 275,) yet the investigations preceding were so informing that this final step was not a long one and the patent must be confined to the results obtained by the use of oil within the proportions often described in the testimony and in the claims of the patent as "critical proportions," ," "amounting to a fraction of one per cent. on the ore," and therefore the decree of this Court will be that the patent is valid as to claims Nos. 1, 2, 3, 5, 6, 7, and 12, and that the defendant infringed these claims, but that it is invalid as to claims 9, 10, and 11. Claims Nos. 4, 8, and 13 were not considered in the decrees of the two lower courts and are not in issue in this proceeding.

The decision of the circuit court of appeals will be reversed, and the decision of the district court, modified to conform to the conclusions expressed in this opinion, will be affirmed.

[Supreme Court of the United States.]

ADAMSON V. GILLILAND.

Decided January 8, 1917.

235 O. G., 1056; 242 U. S., 350.

1. PATENTS-INFRINGEMENT--ORIGINALITY—SIMILARITY IN THE DEVICES. Where defendant alleged that he produced the device independently prior to the invention by plaintiff, but it appeared that defendant's device was an exact replica of plaintiff's, including features which plaintiff considered important to the operation, but which defendant claimed were placed there to be used as a talking-point to deceive the public, Held that it surpasses belief that the similarity arose by chance,

2. SAME-SAME-SAME.

Where there was evidence that one device was copied from the other and plaintiff had made public his device, while defendant had not, and no other channel of information between the two appeared to exist, Held that the plaintiff must be regarded as the originator of the device.

3. SAME CREDIBILITY OF WITNESSES AND CONFLICTING TESTIMONY-TRIAL COURT FOLLOWED.

Where the finding of the master or judge who saw the witness turns upon the credibility of witness or upon conflicting testimony, it must be treated as unassailable so far as there is any testimony consistent therewith.

Mr. Percy B. Hills for Adamson.

Mr. James A. Carr for Gilliland.

Mr. Justice HOLMES delivered the opinion of the Court.

This is a suit brought by the petitioner for the infringement of a patent for a vulcanizing device

including a vulcanizing member constructed to retain a combustible fluid upon and in contact with its upper surface, the lower surface of the vulcanizing member being adapted to be applied to the material to be vulcanized.

In other words the upper side of the upper of two sheets of metal, between which, when heated, the material is to be vulcanized, is fashioned as a cup in which gasolene can be turned to heat it. The specific character of the machine has made of it a valuable success. The respondent admitted making and selling devices like the plaintiff's, but alleged and testified that he made them first. In a previous suit by the plaintiff the plaintiff and the present defendant testified and District Judge Geiger gave the plaintiff a decree. In this case again the district judge in his turn saw the defendant and heard additional evidence, but, after criticizing it said that his own judgment was that the new testimony would not have changed Judge Geiger's opinion, and while professing to follow that opinion according to the usage of district judges in such matters, evidently, to our mind, signified that he agreed with Judge Geiger, although in terms only following what had been done. The circuit court of appeals treated the action of the district judge as a mere yielding to the authority of the former decision and reversed the decree upon the evidence as it stood in print.

We are unable to agree with the circuit court of appeals. There is no question that the plaintiff did not copy the defendant, that he put his invention into the market in November, 1911, and that the defendant did not put out his vulcanizer until February or March of the following year; but the defendant says that on August 7, 1911, twelve days before the plaintiff made the drawing that depicted his invention, he had had castings made that are substantially identical with the plaintiff's device and identical in particulars that the plaintiff's patent made material, but that the defendant declared

to answer no useful end. The plaintiff's cup had pins projecting from the bottom arranged in circles around a central one, which his specification described as serving to conduct the heat of the flame downward into the vulcanizing-plate and the combustible fluid. The defendant's original casting showed pins of similar arrangement. He explained that the similarity was accidental, that the pins were of no use, but that

we expected to tell the poor unsuspecting public that they conducted the heat * * to the bottom of the vulcanizer.

"which is a false statement." It needs no emphasis to point out the improbability that the defendant at nearly the same time as the plaintiff should have hit by accident upon the same configuration in striking particulars that he regarded as immaterial, and, merely to deceive the public, have invented the same by no means obvious explanation that was offered seriously by the plaintiff but that the defendant regarded as false. The improbability is intensified by a further coincidence also explained by the defendant as accident. The lugs by which the cup was to be fastened to the lower surface happened to face in opposite directions in the plaintiff's device, although later they were made to face the same way. The defendant's also faced in opposite directions. It surpasses the power of belief that a man who testified that there was nothing in the invention, that it was merely arranging to fasten a ladle to a board, should have come by pure chance to make so exact a replica of the plaintiff's specific form. Inspection of the two castings shows more clearly than can words that one must have been a copy of the other. The plaintiff and defendant lived far apart. Adamson had no chance to copy Gilliland. On the other hand, after Adamson's vulcanizers were made public Gilliland could copy them. The man who made the castings shows that the resemblance was even more complete than we have stated by reason of the presence of a base-plate, although Gilliland denies that he had one at that time.

There is no doubt that the defendant had castings made. The essential question is the time when they first were made. We shall not discuss the evidence of those concerned in the making beyond recurring to the impression that the witnesses made upon the district judge and mentioning that a dray-ticket relied upon as fixing that date appears to have been open to grave suspicion from its character, marking, and other details. Considering that a patent has been granted to the plaintiff the case is preeminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses—

depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable. (Davis v. Schwartz, 155 U. S., 631, 636.)

The reasons for requiring the defendant to prove his case beyond a reasonable doubt are stated in the case of The Barbed Wire Patent, Washburn & Moen Manufacturing Co. v. The Beat 'Em All Barbed Wire Co., (C. D., 1892, 299; 58 O. G., 1555; 143 U. S., 275).

Upon these considerations and a review of the evidence we are of opinion that the decree must be reversed.

Decree reversed.

[Supreme Court of the United States.]

MOTION PICTURE PATENTS COMPANY v. UNIVERSAL FILM MANUFACTURING COMPANY et al.

Decided April 9, 1917.

238 O. G., 311; 243 U. S., 502.

1. PATENTS-RIGHT TO RESTRICT USE OF PATENTED MACHINE.

A patentee or his assignee may not license another to manufacture and sell a patented moving-picture machine and by a mere notice attached to it limit its use by the purchaser or by the purchaser's lessee to moving-picture films which are no part of the patented machine and which are not patented. (Henry v. Dick, C. D., 1912, 575; 176 O. G., 751; 224 U. S., 1, overruled.) 2. SAME-SAME-RIGHT TO IMPOSE CONDITIONS AFTER SALE.

The assignee of a patent which has licensed another to make and sell the machine covered by it may not by a mere notice attached to such machine limit the use of it by the purchaser or by the purchaser's lessee to terms not stated in the notice, but which are to be fixed, after sale, by such assignee in its discretion.

3. SAME RIGHTS CREATED BY GRANT OF PATENT.

"It has long been settled that the patentee receives nothing from the law which he did not have before, and that the only effect of his patent is to restrain others from manufacturing, using, or selling that which he has invented. The patent law simply protects him in the monopoly of that which he has invented and has described in the claims of his patent. (United States v. American Bell Telephone Co., C. D., 1897, 442; 79 O. G., 1362; 167 U. S., 224; Paper Bag Patent Case, C. D., 1908, 594; 136 O. G., 1297; 210 U. S., 405; Bauer v. O'Donnell, C. D., 1913, 533; 191 O. G., 1068; 229 U. S., 1.)

“The primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is 'to promote the progress of science and the useful arts.' (Constitution, Art. I, sec. 8.)"

5. SAME SCOPE OF PATENT LIMITED BY ITS CLAIMS.

"The scope of every patent is limited to the invention described in the claims contained in it, read in the light of the specification. These so mark where the progress claimed by the patent begins and where it ends that they have been aptly likened to the description in a deed, which sets the bounds to the grant which it contains."