Appellant brought this action for infringement of two patents issued to Samuel F. Henderson, No. 1,174,008, issued February 29, 1916, for the art of preserving eggs by the application of a colorless, odorless, tasteless, nonvolatile mineral oil to the shell of the egg, and patent No. 1,177,105, issued to him for the art of preserving and sterilizing eggs. Appellant states: “Both patents relate to and cover methods for preserving eggs by treating them with petrolatum. In addition, the first patent also covers, as a new product or .article of manufacture, an egg treated according to the methods covered by said patents.”

We quote as briefly as may be from the specifications and claims of the first patent involved in this action:.

The second patent (No. 1,177,105) is for an improvement on the first, by applying the oil when heated. The specifications of the second patent largely duplicate the first with certain additions, a portion of which we quote as follows:

The trial court held both these patents void for want of invention. As the record is somewhat voluminous, consisting of 456 pages of briefs, transcripts, and exhibits, we can perhaps best state appellant’s position in this appeal by quoting from its brief as follows:

On the other hand, the position of the appellee is tersely stated in its brief as follows:

In considering the state of the art of preserving an egg by closing the pores of its shell, attention is called to an article published by Benjamin Eranklin concerning the preparations necessary or advisable by a passenger for a long sea voyage. He says, “You ought also to carry with you *' * eggs dipped in oil. * * *” Appellee finds in this suggestion, published in Erank-lin’s writings and now accessible in public libraries, a complete anticipation of the art claimed to have been invented by Henderson. Appellee’s position on that matter can best be stated by quoting from its brief, as follows:

Appellant’s brief would, however, indicate that Franklin’s advice to dip eggs in oil was entirely too vague to indicate what was proposed to be done or the results it was hoped to achieve thereby or the actual result attained by the process. Appellant states in that regard, as follows:

These, deficiencies, however, if they be such, were supplied to some extent at least by subsequent disclosures contained in patents issued by this and other governments which we will now consider.

In 1869 letters patent were issued by the United States Patent Office to John Long-maid of New York City. This invention of a process for preserving eggs specified the removal of air from the egg by placing the egg in a partial vacuum and then surrounding the egg with carbonic acid gas, which ■would be absorbed through the shell. The portion of the specifications of interest in this proceeding is the specification that, after the exchange of the air for the carbonic acid gas in the egg, the pores of the egg were to be closed by the application of oleaginous or mucilaginous substances., We quote from the patent as follows:

In 1883 provisional specifications for a patent were filed with the British Patent Office by James Yate Johnson for method of preserving food. The specifications provide: “This invention relating to the preservation of food and other animal and vegetable substances consists in the utilization as hereinafter described of the antiseptic properties possessed by certain paraffins or hydrocarbons variously known as ‘Petreoline’ vase-line or soft paraffin.”

This patent describes in detail the method of manufacturing the “petreoline” and describes its qualities as follows:

The patent was issued March 25, 1884. In addition to the description of petreolhse *148 ■ contained in the preliminary specification, we have this further description: “The ‘petreo-line’ thus obtained is white or red in various shades and appears as a homogeneous mucilaginous paste somewhat tenacious, very unctuous and yielding readily to pressure but never showing any exudation of oil and is inodorous and tasteless.”

It was evidently the opinion of the pat-entee that this invention could be used for the preservation of eggs. In that regard he says: “Aeording to this invention meat, fish, fruit, vegetables, eggs, custards, oils, fats and in general all organic matter of animal or vegetable origin are preserved from deterioration or decay by the application of this substance as hereinafter described.”

Marvin L. Chappell, a chemist, expert in dealing with petroleum products, testified with relation to this patent that the product “petreoline” described in the patent is a mineral oil, odorless, tasteless, and nonvolatile at all temperatures, that it would be a liquid oil at normal temperature. The witness says the percentage of oil and low percentage, of solids “would necessarily mean it would be a liquid and that the food to be preserved, such as eggs, could be dipped into it readily.”

In 1900, the German Patent Office issued a patent to E. Utescher for the preservation of eggs. In this patent it is stated:

In 1901 Dr. Teisler, of Germany, procured a patent for the preservation of eggs. This patent is of interest in the ease at bar solely because it assumes as a well-known fact that the cause of spoilage in eggs is the penetration of the shell by bacteria, and that the preferred method of preventing such action is by stopping the pores of the shell with various substances, among others mentioned being grease or vaseline. We quote from the patent as follows:

In 1903 the United States Patent Office issued‘a patent for the preservation of eggs by the application of a composition composed principally of lard, petroleum jelly, paraffin, and beeswax, with small quantities of formaldehyde and oil of eitronella.

In 1905 a British patent was issued to *149 Pauli and Mach. This patent had largely to do with the cleaning of the egg before the pores .of the egg shell were filled “with par-affine or the like.” One of the claims of this patent is as follows: “Eggs having the pores in the shell filled with some substance affording no food for bacteria (such as paraffine, wax or the like), the impregnating material covering also the inner surface of the shell in a homogeneous thin layer.”

June 14, 1904, the United States Patent Office issued a patent to W. H. Strickler. The invention claimed for this patent was one for the immersion of the egg in paraffin oil while the egg still retains the animal heat from the body of the hen. The proposed scheme of the inventor was to have the hen lay the egg in a nest immediately over an oil bath into which the egg would drop as soon as laid. In short, the scheme was one to have the hen apply the preservative.. The patent assumes as a well-known fact that the immersion of an egg in paraffin oil would tend to close the pores and thus preserve the egg. It will be observed in considering the portions of the patent which we shall presently quote that it was essential to the efficacy thereof that the bath into which the egg was dropped should be liquid at ordinary atmospheric temperature.

“In practicing my process I provide means for rendering impervious to air the shell of the egg while it still retains the animal heat of the fowl and while its contents are still expanded, whereby when the egg subsequently cools and the contents thereof contract, air does not pass through the shell to the interior thereof, such as occurs upon the natural cooling of an unprotected egg. I employ for the air-excluding medium any suitable substance by which the exterior of the egg shell may be invested, the medium being preferably applied to the shell in a liquid state and of such nature that upon the cooling of the egg the external air-pressure forces the substance into the pores of the egg shell, whereby the shell becomes impervious to the air and excludes its entrance to the interior thereof. Paraffine oil possesses the desired air-exeluding qualities when applied in the manner hereinbefore mentioned, and I have used this substance with a high degree of success. Said air-excluding medium should be applied to the egg before the latter has lost any appreciable amount of its temperature in order to secure the best results and to this end should be applied to the egg shell as soon as practicable after the egg is laid.”

In 1908 a French patent was issued upon a method of preserving products, including eggs, by immersing them in melted paraffin. In the patent it is stated: “It is evident that one might replace the paraffine by a substance or a compound of analogous substances such as yellow or white wax, sperma-ceti, Judea pitch, etc., provided that the material used is without odor or taste and in no way attacks the organoleptic qualities of the foods and forms a coating impermeable to air.”

In 1909 a French patent was issued to Etard and Lambert for the preservation of teggs. The patent discusses the previous state of the art of preserving eggs, and, among other things, contains the following: “The methods of preservation consist in coating the shell of the eggs with an odorless varnish such as oil, paraffine, etc., or in placing the eggs in lime, straw, sawdust, bran, ashes, etc., will prevent the air from penetrating through the holes in the shell but will not destroy the spores and the myceliums which continue to develop in spite of the outer protective envelope.”

The purpose of his invention was to overcome 'the objections to the known methods of preserving eggs. This process, in short, consisted- in immersing the egg first in a “liquid of a harmless nature brought to a high temperature * * * this liquid being capable of dosing up, after the immersion, the orifices of penetration presented by the shell. * * ’* This liquid must not give any taste to the eggs and must be capable of stopping up the holes of the shell after their immersion.

“It is possible to employ, to obtain this result, an antiseptic solution of suitable nature, grease, edible oil or neutral oil, par-affine,” etc.

The significant thing about this patent, from the standpoint of present inquiry, is the fact that the author of the invention requires a liquid such as a neutral oil or paraffin which is tasteless, and, as the patentee recognized, should be odorless.

In 1911 a United States patent was issued to Peterson and Clairemont for an egg-preserving compound in which the egg was to be dipped. The liquid was a compound composed of one-third juice of cactus and two-thirds cotton-seed oil.

In connection with these various patents defendant introduced evidence, the purpose of which was to show that the petrolatum specified in the Henderson patents was nothing more nor less than the paraffin oil men *150 tioned. in a number of the foregoing patents. In order to establish this fact, the United States Pharmacopoeia, authorized by the United States Pharmacopoeia Convention held in Washington May 11, 1922, was offered in evidence wherein liquid paraffin, white mineral oil, paraffin oil, and liquid petrolatum were described and treated as synonymous. The articles described it as “colorless, transparent, oily liquid, free, or nearly free, from fluorescence.”

The United States Pharmacopoeia authorized by the convention held May 10, 1910, also treats liquid petrolatum and liquid paraffin as synonymous, and describes it as follows :

In 1914 the United States Dispensary, based upon the ninth convention of the United States Pharmacopoeia (1910) and the British Pharmacopoeia (1914), describes the characteristics and methods of manufacture of petrolatum, and states that this article has been marketed under many names, including liquid paraffin, liquid vaseline, nutraloil, paraffin oil, Russian mineral oil, Russian paraffin oil, white paraffin oil. The appellant claims that, although these publications show that paraffin oil and petrolatum were synonymous terms at the time they were issued, they do not prove that by the term “paraffine oil” used in some of the patents the patentee intended to designate “petrolatum,” for the reason that this product is of comparatively recent manufacture, and was therefore unknown at the time of the foregoing patents. It appears that the product was first used in this country under the name of Russian oil, but that after the World War began the supply of Russian oil was shut off, and our own refineries produced a product which is marketed under the various names hereinbe-fore mentioned. From an inspection of the foregoing patents, it is clear that each pat-entee had in mind an odorless and tasteless oil to be applied to the egg shell. It is clear that an oil that did not deteriorate and become rancid and one that' was colorless, and therefore did not change the appearance of the egg, was desirable. Liquid paraffin was used for this purpose. It is probably true that the paraffin referred to in most of these patents as an oil had been reduced to liquid form by increasing its temperature above its melting point. When so melted, it had all the attributes of petrolatum, with the single exception that it had a higher melting point, that is to say, liquid or molten paraffin had the exact qualities described in the Henderson patent, in that it was odorless, colorless, nonvolatile mineral oil. Henderson, in his specifications, recognizes the prior use of paraffin oil for the purposes of preserving eggs, and in that regard he differentiates his patent as follows:

The idea of using an oil or grease, however, as appears from the foregoing quotations from patents, is not new in the art of preservation of eggs. At most, the specifications of Henderson’s patents indicate that the use of paraffin had the disadvantage that it was not an oil at ordinary temperature.

While the use of paraffin with its higher point of liquidizing was pointed out as objectionable by the patentee, it should be observed that various patents above mentioned specified liquid vaseline; that is, vaseline melted by the application of more heat than average atmospheric temperature.

We think there was no invention involved in the selection of an odorless, tasteless, colorless, nonvolatile mineral oil as a suitable oil in which to dip an egg for human consumption. If, however, we assume, as appellant contends, that there was some inventive genius shown in the selection of an oil for that purpose which has recently been placed on the market which had all the characteristics of the familiar oil, melted paraffin, except a lower melting point, then we are faced with the faet that as early as 1883 Johnson, in the specifications of his patent for the preservation of food, recognized the desirability of using hydrocarbon derivatives from petroleum for the purpose of preserving food; that he described the method of manufacture of such a derivative which he named “Petroline,” which was white; odorless, and tasteless, and nonvolatile, and eomr *151 posed of hydrocarbons, and having a density of 50° C. (90° F.) of .84 and a melting point at 35° C. (67° F.), and was therefore an oil at usual atmospheric temperature. It is probable . that the product, petroline, de- ■ scribed by Johnson in his British patent of 1883, is not substantially different except in' degree of refinement from the petrolatum described in appellant’s patent, although it has a somewhat higher melting point. In view of all this evidence, the learned trial judge stated that:

With this view we fully concur.

Judgment affirmed.

SAWTELLE, Circuit Judge, concurs.