MR. JUSTICE BROWN His first opinion was in Cope v. Cope, 137 U. S. 682, which had been submitted prior to his appointment, and involved the valid ity of a statute of Utah, passed in 1852, providing that illegitimate children and their mothers inherit in like manner from their father provided the paternity was proved to the satisfaction of the court. He showed that the statute was within the powers conferred upon the territorial leg islature by the act establishing the territory and that it had not been abrogated, an nulled, or repealed by the subsequent act of 1862 for the prevention of polygamy, and he declared that the annulment of the statute by implication would not be favored any more than a repeal would be favored by the same method. "Legislation," he said, "for the protection of children born in polygamy is not necessarily legislation favorable to polygamy. There is no in consistency in shielding the one and de nouncing the other as a crime." One of 'his earliest patent cases involved the validity of the Glidden barbed wire patent which the Circuit Court had held was void for want of novelty. Mr. John R. Bennett, who so recently met an untimely death in a railroad accident, was for the appellants, and Mr. A. H. Blair and Mr. W. H. Singleton for the appellees, with whom Mr. David B. Henderson, afterwards Speaker of the House of Representatives, as counsel on the brief. Barbed Wire Patent case, 1891, 143 U. S. 275. The crucial point was whether Glidden could broadly claim the use of the plain or twisted wire, the sharp thorns or barbs or indeed the combination of the two as they appeared in previous patents; Justice Brown in his opinion showed that while affixing the barbs to the fence wire did not appar ently give a wide scope to the ingenuity of the inventor, a step had been marked in the progress of the art and though the differ ence between Glidden 's wire and the one last patented was not radical but slight, still it was apparently that slight difference
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that had made the barbed wire fence a practical and commercial success, so that the sales, which under the previous patents had never exceeded 3,000 tons per annum, under the Glidden device had reached the enormous amount of 173,000 tons. "Courts have not been reluctant," he said, "to sus tain a patent to the man who has taken the final step which has turned a failure into a success. In the law of patents it is the last step that wins. . . . Some one of the experimenters may have, in a crude way, hit upon the exact device patented by Glidden. . . . But it was Glidden, beyond question, who first published this device; put it upon record; made use of it for a practical purpose; and gave it to the public, by which it was eagerly seized upon and spread until there is scarcely a cattle rais ing district in the world in which it is not extensively employed. Under these cir cumstances we think the doubts should be resolved in favor of the patentee." Justice Field dissented on the ground that there was no novelty in the invention. In Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, involving the breadth and scope of the Westinghouse brakes, he held that the Boyden device for a fluid pressure brake was not an infringement of the Westinghouse patent of 1887 for fluid pressure automatic brake mechanism. Westinghouse claimed that his patent was a pioneer invention and that he for the first time had brought to light a method or pro cess "which," as Justice Shiras said in his dissenting opinion in which Justice Brewer concurred, "by the operation of the air from the train pipe with that from the car reservoir, created the 'quick action' brake." But the majority of the court did not so regard it and, in the opinion delivered by Justice Brown, held that although credit might be due to Mr. Westinghouse for hav ing invented the function, Mr. Boyden had exhibited sufficient ingenuity in the discov ery of a new and more perfect method of performing that function; and while he
