(dissenting). I am unable to agree with my Associates in the conclusions reached in this case.
All the apparatus used by McAfee in conducting his successful experiments, as well as that shown in his application, were constructed and operated essentially as described in Gray’s letter of November 5th. A careful reading of this letter, in the light of the conversations and correspondence preceding it, demonstrates that Gray had a clear conception of the means of accomplishing the result. Much is attempted to be made of a sentence of the letter to the effect that “the distillates can probably be hydrogenized by passing a catalyzing agent in that part of the vapor line furthest from the fire.” If Gray had added the injunction that, when aluminum chloride is used as a catalyst, it should be mixed with the oil in the still, instead of placed in the vapor line, a fact concedcdly known to both at the time the letter was written, his disclosure would have been complete. But Gray had not in mind any particular catalyzing agent, since by his direction a number had been ordered by McAfee, with which experiments were to be made.
It must be remembered that the breaking of oil was old in the art, as well as the making of gasoline by condensation. The whole invention here was to construct an apparatus in which condensation would take place at a point productive of the largest percentage of gasoline; in other words, locating a condensation point sufficiently distant from the fire that the temperature would be 350 degrees. Such an apparatus was described in Gray’s letter of November 5th. It is the apparatus shown as Gray’s Exhibit A, sketched by McAfee on the witness stand. It shows a reflux or air-cooled condenser, with a thermometer located at the top of the condenser to maintain a constant temperature of 350 degrees, all as described in Gray’s letter. *180This is the apparatus shown in Gray’s patents in interference, as the applications were originally filed.
McAfee, a learned chemist, but with little or no knowledge of treating oils, was working under the supervision and direction of Gray. All information which he possessed on the subject he had derived in conversation or by correspondence with Gray. Gray, in his letter of November 5th, described the apparatus to be used in accomplishing the desired result, and advised McAfee as to the method of experimenting with it. It therefore results that anything derived from those experi-ments is the invention of Gray, and not McAfee.
The Examiner of Interference, after a thorough analysis of the testimony, reached a conclusion which in my opinion epitomizes this case:
“From the evidence submitted it is concluded that, during the time when the invention in controversy was developed. McAfee was under the immediate supervision of Gray and was responsible to him directly; that Gray disclosed the plan of the invention to McAfee; that what McAfee did in developing the said process was no more than the duty of his position required of him, and was in accordance with the plan outlined and suggested to him by Gray; and that what McAfee did under those conditions inures to Gray under the well-established principle of law enumerated and reiterated in the decision indicated above” — citing a number of decisions from this court.
Whatever mistakes Gray may have made in filing his applications are beside the case, since McAfee was not an original inventor, and therefore in no position to profit by Gray’s mistakes. Gray, therefore, should be awarded priority.