(dissenting).
I would affirm the judgment appealed from on the ground that the patents involved do not measure up to the object and purpose of the patent law as expressed in the Constitution, that is “To promote the Progress of Science and the useful Arts * * * ” Art. I, § 8, cl. 8. This is true, it seems to me, because nothing in the Getz patents appears to me to be new or novel within the meaning of the patent law. I am impressed that the decision of the trial court in this case and the decision of the United States Court of Appeals of the Second Circuit in Aeration Processes, Inc., v. Walter Kidde & Co., Inc., et al., 170 F.2d 437, are correct. The principles applicable to such a case are found, also, in Great Atlantic & Pacific Tea Co. v. SuperMarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. An invention, to justify a patent, should “make a distinctive contribution to scientific knowledge.” All that Getz claimed to have “contributed” to the science of chemistry in 1933 was that nitrous oxide “is better than carbon dioxide [for making whipped cream] because it doesn’t give the whipped cream a biting taste.” In other words, carbon dioxide contains some acid and nitrous oxide does not. The record discloses that this fact has been and is known generally by chemists. Any food containing acid has a “biting taste.” Where acid is absent the sour or biting taste is also absent. Getz added nothing to the progress of the science of chemistry and the useful arts. He discovered only what any chemist could have told him would be the result before he used nitrous oxide to make whipped cream.