BUFFINGTON, Circuit Judge.
This case concerns the recovery, by a single distillation of crude petroleum, of its by-products. The recovery of such by-products by successive distillations was well known, but this patent concerns the obtaining of such by-products by a single, as compared with recovery by additional, successive, distillation.
In a general way we may say that distillation is effected by the fact that crude petroleum vaporizes at different degrees of heat and in and from such different vapors various by-products are secured. The different temperatures at which vaporization takes place were well known and the apparatus and processes for securing desired by-products from such different heat zones were known and used. But to obtain all the by-products the art practiced different distillations. In other words, it practiced successive, isolated, or what may be termed tandem distillations, in order to recover all the by-products. Such successive distillations were regarded as a necessary burden in the art, although they required additional expensive apparatus, delay, and the additional labor and fuel incident thereto. For example, one apparatus could by one distillation recover those by[645]*645products incident to vaporization at the highest and lowest vaporization heat points, but to recover the by-products at the intermediate vaporizing points the returning, undistilled, and unvaporized liquid was, as we have said, subjected to a further distillation process in order to thereby vaporize and recover their by-products. In other words, there was a second, triple, and indeed in some cases five successive, isolated, independent distillations of the unvaporized fluid, undistilled by previous operations. Ihus liquidation by what was known as bubble towers was a common practice wherein the recovery, for example of gasoline, was effected by superheating, and the recovery of other products, for example kerosene, gas, oil, and light lubricants, was effected at what we may call subheating, ^ vaporizing points and the unvaporized liquid had to be subjected to another distillation process where such hquid vaporized at pomts _ intermediate the highest and lowest vaporizing heat incident to the primary distillation points of the then art practice. So also steaming towers were used. The apparatus and process of the prior art was tersely summarized in the testimony of a witness who knew and practiced the art. We find no testimony to the contrary by any witness who took part in ihe practical art. His testimony is: “With these earlier fractionatmg columns we took from that column only two products, a top and a bottom product. And if we wanted an intermediate product, we ran it through another still and a separate fractionating column; all steps were successive. So that for each intermediate product we had to have another still and another fractional-mg column.
He further said, referring to other apparatus: “They started off with two of those towers, and finally ended up with five, * * * We made either five or six cuts from those stills. Five or six streams; they were not to specifications, To get them to specifications we took them out and re-ran them.”
Now it is asserted that Lewis in his patent No. 1,680,421, granted August 14, 1928, for “Fractional Distillation,” first disclosed the possible use of a distillation process which in one distillation effected the result only obtainable in the prior art by one, two, or even some six, distillations, Did he do so ? In that regard we note that the trial judge made no finding of fact that the unitary complete distillation process of the present patentee was disclosed in any prior patent or in any proven practice, In the absence of any such finding it is our right and duty to make a finding in that particular. In that regard we have the uncontradicted proof of the witness quoted above.
Indeed, in the view the trial judge took 0f the case, namely, that the patent was a mere aggregation of old elements and not a co-operating combination, it was not necessary to pass on the question of novelty, for his finding was that the process of the patent presented nothing but an aggregation of elements, each of which was old in the distillation art. In our view the question was broader than this finding and the disposition of the case necessitates a finding whether the single, unitary distillation was first disclosed by the patentee,
Finding then, as we do, that the disclosure was novel> the next question arises, was it a mere asscmbling of known de. ments ¡n which each element did in com_ bination do ^ same thing and perform tbe san>8 function which each element did in isolation> or did the combination of old, isolated and non-co-operating agencies effect a new resub: jn combination? That jt effectcd a new result must be conceded, None of these known agencies could cornpletel distil petroleum. The work o{ each wag Hmiled t0 a single type of distiUa. tion and the extraction of part¡cuiar by. product; or products. I„ full possession of all tbcse agencies used in successive, tandem operations, no one suggested or found any way in whi¿h by thg use of these agencies or the making of new distiiiing apparaluS; t0 distiI crude oil in a single> unitary distillation which could extract all possible by-products. While the former practice created the problem, it did not solve it. How the patentee solved the problem and the process and means to effeet unitary distillation are stated in his application and are summarized in the claims in suit as follows:
«L in tbe art of fractionally distilling hydrocarbon oils, the method which corn-prises passing vapors of the oil counter current to and in contact with reflux oil, withdrawing a portion of the reflux oil in-termediate the lightest and heaviest fractions, passing the reflux oil so withdrawn counter current to steam in contact there-with to remove low boiling components, thereby yielding an intermediate fraction [646]*646of higher flash' point, and continuing the-other portion of the reflux oil counter current to the vapors in an earlier stage of the fractionating system.
“2. In the art of fractionally distilling hydrocarbon oils, the method which comprises passing vapors of the oil counter current to and in contact with reflux oil, withdrawing a portion of the reflux oil intermediate the lightest and heaviest fractions, subjecting the reflux oil so with'drawn to direct contact with steam to separate low boiling point components, returning the vapors of the separated low boiling components into the fractionating system, and continuing the other portion of the reflux oil counter current to the vapor in an earlier stage of the fractionating system.”
From these it will clearly appear that no old element continued to work in its old way to produce certain by-products, but that each and every element was necessary and co-operated in a new way to effect complete recovery of all by-products by an unitary, single, and all-effective distillation. Was it useful? This great record, the earnest contest made, the effort of the plaintiff to enforce its granted claims, and the effort of the defendant to invalidate the claims, bear silent testimony to its great worth in their regard. Indeed, the proof of its usefulness is shown by the uncontradicted proofs. A witness familiar with the working art, contrasting the advantages of an unitary process over the old practice, says:
“And I know we have what the saving is of one piece of equipment as against another, and we have records of that.
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BUFFINGTON, Circuit Judge.
This case concerns the recovery, by a single distillation of crude petroleum, of its by-products. The recovery of such by-products by successive distillations was well known, but this patent concerns the obtaining of such by-products by a single, as compared with recovery by additional, successive, distillation.
In a general way we may say that distillation is effected by the fact that crude petroleum vaporizes at different degrees of heat and in and from such different vapors various by-products are secured. The different temperatures at which vaporization takes place were well known and the apparatus and processes for securing desired by-products from such different heat zones were known and used. But to obtain all the by-products the art practiced different distillations. In other words, it practiced successive, isolated, or what may be termed tandem distillations, in order to recover all the by-products. Such successive distillations were regarded as a necessary burden in the art, although they required additional expensive apparatus, delay, and the additional labor and fuel incident thereto. For example, one apparatus could by one distillation recover those by[645]*645products incident to vaporization at the highest and lowest vaporization heat points, but to recover the by-products at the intermediate vaporizing points the returning, undistilled, and unvaporized liquid was, as we have said, subjected to a further distillation process in order to thereby vaporize and recover their by-products. In other words, there was a second, triple, and indeed in some cases five successive, isolated, independent distillations of the unvaporized fluid, undistilled by previous operations. Ihus liquidation by what was known as bubble towers was a common practice wherein the recovery, for example of gasoline, was effected by superheating, and the recovery of other products, for example kerosene, gas, oil, and light lubricants, was effected at what we may call subheating, ^ vaporizing points and the unvaporized liquid had to be subjected to another distillation process where such hquid vaporized at pomts _ intermediate the highest and lowest vaporizing heat incident to the primary distillation points of the then art practice. So also steaming towers were used. The apparatus and process of the prior art was tersely summarized in the testimony of a witness who knew and practiced the art. We find no testimony to the contrary by any witness who took part in ihe practical art. His testimony is: “With these earlier fractionatmg columns we took from that column only two products, a top and a bottom product. And if we wanted an intermediate product, we ran it through another still and a separate fractionating column; all steps were successive. So that for each intermediate product we had to have another still and another fractional-mg column.
He further said, referring to other apparatus: “They started off with two of those towers, and finally ended up with five, * * * We made either five or six cuts from those stills. Five or six streams; they were not to specifications, To get them to specifications we took them out and re-ran them.”
Now it is asserted that Lewis in his patent No. 1,680,421, granted August 14, 1928, for “Fractional Distillation,” first disclosed the possible use of a distillation process which in one distillation effected the result only obtainable in the prior art by one, two, or even some six, distillations, Did he do so ? In that regard we note that the trial judge made no finding of fact that the unitary complete distillation process of the present patentee was disclosed in any prior patent or in any proven practice, In the absence of any such finding it is our right and duty to make a finding in that particular. In that regard we have the uncontradicted proof of the witness quoted above.
Indeed, in the view the trial judge took 0f the case, namely, that the patent was a mere aggregation of old elements and not a co-operating combination, it was not necessary to pass on the question of novelty, for his finding was that the process of the patent presented nothing but an aggregation of elements, each of which was old in the distillation art. In our view the question was broader than this finding and the disposition of the case necessitates a finding whether the single, unitary distillation was first disclosed by the patentee,
Finding then, as we do, that the disclosure was novel> the next question arises, was it a mere asscmbling of known de. ments ¡n which each element did in com_ bination do ^ same thing and perform tbe san>8 function which each element did in isolation> or did the combination of old, isolated and non-co-operating agencies effect a new resub: jn combination? That jt effectcd a new result must be conceded, None of these known agencies could cornpletel distil petroleum. The work o{ each wag Hmiled t0 a single type of distiUa. tion and the extraction of part¡cuiar by. product; or products. I„ full possession of all tbcse agencies used in successive, tandem operations, no one suggested or found any way in whi¿h by thg use of these agencies or the making of new distiiiing apparaluS; t0 distiI crude oil in a single> unitary distillation which could extract all possible by-products. While the former practice created the problem, it did not solve it. How the patentee solved the problem and the process and means to effeet unitary distillation are stated in his application and are summarized in the claims in suit as follows:
«L in tbe art of fractionally distilling hydrocarbon oils, the method which corn-prises passing vapors of the oil counter current to and in contact with reflux oil, withdrawing a portion of the reflux oil in-termediate the lightest and heaviest fractions, passing the reflux oil so withdrawn counter current to steam in contact there-with to remove low boiling components, thereby yielding an intermediate fraction [646]*646of higher flash' point, and continuing the-other portion of the reflux oil counter current to the vapors in an earlier stage of the fractionating system.
“2. In the art of fractionally distilling hydrocarbon oils, the method which comprises passing vapors of the oil counter current to and in contact with reflux oil, withdrawing a portion of the reflux oil intermediate the lightest and heaviest fractions, subjecting the reflux oil so with'drawn to direct contact with steam to separate low boiling point components, returning the vapors of the separated low boiling components into the fractionating system, and continuing the other portion of the reflux oil counter current to the vapor in an earlier stage of the fractionating system.”
From these it will clearly appear that no old element continued to work in its old way to produce certain by-products, but that each and every element was necessary and co-operated in a new way to effect complete recovery of all by-products by an unitary, single, and all-effective distillation. Was it useful? This great record, the earnest contest made, the effort of the plaintiff to enforce its granted claims, and the effort of the defendant to invalidate the claims, bear silent testimony to its great worth in their regard. Indeed, the proof of its usefulness is shown by the uncontradicted proofs. A witness familiar with the working art, contrasting the advantages of an unitary process over the old practice, says:
“And I know we have what the saving is of one piece of equipment as against another, and we have records of that.
“I don’t know specifically how much we save on this rectifying column and the pipe heater over the shell still, but I know we have just shut them down, and the standards', the amount of dollars we spend per month, are tremendously reduced; and the" labor-requirements are reduced by equipment of that description; fuel is reduced. We haven’t the radiation losses and everything else you have in shell still equipment. In innumerable ways there are savings, but I am sorry I can’t tell you specifically what they are.
“A large part of that saving would not be due to this very efficient pipe heater we have; the biggest saving in that equipsnent is prevention of rerunning and re-handling of stocks. That is what ever-y refinery is trying to work up. * * *
“Then we have another added feature, the stripping of these side streams, which makes the tower and everything possible. •In other words, I think the thing was a development of trying to get an efficient heating unit, an efficient fractionating unit, and something where. you could make all your cuts, do the whole job, in one unit; and I think all of these aims were at the same point — to permit of effecting all of these economies in one unit.”
Another witness, referring to unitary distillation plants, testified:
“These pipe still bubbler tower combination installations usually replaced the old type of shell still, i. e. a battery, one or more batteries, of shell stills. The advantages of a tube still installation over the old type continuous battery of shell stills consist of a largely reduced fuel consumption, reduced steam and water consumption, and reduced man-power, i. e. reduced labor costs. It also very materially reduces the amount Of ground covered. * * *
“Such equipment, either of ours or of our competitors, has gone into every refinery of importance in this country since 1928.”
It is clear that the tandem distillations of the old and now abandoned art required separate, additional distillation equipment of large magnitude and great cost, additional fuel, additional labor, additional oversight, and additional ground. All this was done away with by the substitution of a single plant, a single distillation, and such a by-product recovery as no one- of the old agencies could by their distillation effect. Manifestly, a patentee who first showed a simple way by which these supposed necessary elements of cost, labor, fuel, and ground, were done away with and in their stegd showed an unitary operative distillation process, made an important step in advance and met the requirements of'the Federal Constitution, art. 1, § 8, cl. 8, U.S.C.A., which provided: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
So regarding, we hold the claims in suit valid. That they were infringed was a fact found by the trial court and we find no error in the court so finding. The claims here involved are not for an apparatus, but for a process which the patentee show[647]*647ed could De used in an apparatus such as he showed. Assuming the defendant’s apparatus differs in some inconsequential details or in additions to the illustrative apparatus shown in the patent in suit, such differences cannot make it a noninfringer of the patented process. It follows, therefore, the record must be remanded to the court, with instructions to reinstate the bill, enter a decree of infringement and accounting.