7 F.(24 13 factor of air blast as a way to produce slag at a temperature which will not attack the magnesite lining. Before the invention of the patent in suit slag was regarded generally as a vicious element in the process of converting copper. It was not known that there was good slag and bad slag, for until Smith appeared it was not known that slag had two qualities under different conditions. Before that time slag was regarded as an element with one bad habit of attacking and destroying acid and basic linings. Smith was the first to show that slag had two habits, or that it was of different kinds, innocent and vicious, and he was the first to show how one could be obtained and the other avoided, and, in consequence, how a basic lining could be preserved through greatly increased length of operation. [2,3] We think this involves patentable novelty. While dealing with old elements in the sense of old ingredients, it involves new results from their new proportions, embracing new qualities of utility. Bethlehem Steel Co. v. Churchward International Steel Co. (C. C. A.) 268 F. 361, 364. Moreover, were the question of invention closer than it seems to be, the position which the invention promptly took in the art would aid in deeiding it, for it is recognized that the fact that an art has long presented a problem and that the process of a patent has solved it, as well as the fact that the process has gone into large general use and has produced new and economical results, speak for its inventive character. Thropp & Sons Co. v. De Laski & Thropp Circular Woven Tire Co., 226 F. 941, 947, 141 C. C. A. 545; Globe Knitting Works v. Segal, 248 F. 495, 498, 160 C. C. A. 505. [4] Immediately upon the granting of the patent, the invention took a high place in the art. Smith made his invention in the early part of 1909 and introduced it commercially during the same year. At that time the production of copper by conversion from copper matte was not less than 1,000,000,000 pounds annually in the United States and Mexico. Aside from the amounts produced by Smith in his research work and by Baggaley and Heywood in their labors at the Pittsmont Mine, every pound was treated in acid-lined converters. This had been the universal practice since the introduction of copper converting as the result of Mahnes' work in 1880. So rapidly did the art take up the invention that in the year 1912 more than 85 per cent. of the copper con7 F. (2d)-2 verted in the United States and Mexico was converted in basic-lined converters by companies licensed under the patent in suit. Today every pound of copper converted throughout the world is converted in basiclined converters. When placed in the scale, these matters weigh heavily in favor of invention. The claims in suit are valid. Because of the metallurgy of the case we at first found the issue of infringement more difficult to decide than the issue of validity. We therefore called for, and have been aided by, a second argument on infringement. Greatly compressed, the story of this issue is as follows: The Anaconda Copper Company, with plants at Anaconda and Great Falls, was one of the largest licensees under the patent in suit. Wheeler and Krejci were then in its employ at the Great Falls Smelter. In 1906 they attempted to convert copper in a basic-lined converter and failed. In 1910, Wheeler went to Garfield and Salt Lake to observe the basic converters there in operation under the Smith process. At Garfield, Wheeler inspected the operations, fully discussed them with Smith, and had in hand the reports of others who had inspected the operations and the report of Mathewson, who was in charge of the Anaconda plant. In 1911, Wheeler and Krejci started basic converting operations of their own and, later, were awarded a patent for their process. Negotiations with the plaintiff for a license under the Smith patent, begun by the defendant in 1909, fell through, and in March, 1911, the defendant abandoned the use of acid-lined converters and installed basiclined converters and operated them under the process of the Wheeler and Krejci patent No. 1,068,470. Taylor, smelter superintendent of the defendant's plant, in obedience to directions, visited the Garfield smelter and the Anaconda smelter for the purpose of observing the working of the Smith process, and, sometime after his return, the defendant operated basic-lined converters on the basis of what Taylor had learned there. Many difficulties ensued. In 1913, Taylor asked a Mr. Mc Gregor, who was on his way to the copper region, to look around and send him information about operating basic-lined converters. Under date of December 3, 1913, McGregor wrote Taylor a letter in which he described in detail the method of handling the converters at Great Falls (under the Smith process), including the method of putting a magnetite coating on the magnesite lining. This letter told the defendant two things: One, how a magnetite coating was initially placed upon a magnesite lining, and, the other, how otherwise the Smith process was practiced. In his patent Smith said nothing about a magnetite coating upon a magnesite lining -the third type of converter appearing in the art and as it came up for the first time on the issue of infringement we must pause to explain, very briefly, its metallurgical reactions. In the bessemerizing process, which we have described, the iron of the matte is first oxidized to ferrous oxide (FeO), and, if there be silica present to unite with each particle of ferrous oxide as it is generated during the blow, a ferrous silica slag is formed. But if there be no silica present, or insufficient silica present, to unite with all the ferrous oxide that is formed during the blow, then the free ferrous oxide (FeO) is further oxidized by the blast to magnetic oxide of iron (Fe3O4), or magnetite, as it is called. Once formed, the magnetite will not unite with silica or be chemically reacted upon by the slag. This magnetite is, however, very soluble in a ferrous silicate slag, just as salt is soluble in water. So the magnetite as it is formed goes into solution in any slag that may be present. The hotter the slag is, the more magnetite it will dissolve, just as the hotter the water, the more salt it will dissolve. Consequently, if, after the slag present has dissolved all the magnetite it will hold, more magnetite is formed, it will crystallize out of the solution upon the relatively cool walls of the converter. When thus crystallized on the walls the magnetite forms a coating upon the magnesite lining and the thickness of the magnetite coating so deposited is subject to.control by two factors-the amount of silica and the temperature. By increasing either or both factors, some or all of the magnetite coating may be dissolved off the walls. By decreasing either or both factors, magnetite may be deposited. This magnetite reaction was known to the art and advantage of its protective quality was taken by some of Smith's licensees, notably the Anaconda Copper Company, and also by Wheeler and Krejci, who incorporated it in their patented process, and finally by the defendant who employed it as an element which it says exonerates it from the charge of infringement. Reduced to narrow terms, the defendant's practice was this: When starting a converter newly lined with magnesite brick-basic lining-it blew the first charge without any silica at all. Thereby the iron in the bath was converted into magnetic oxide of iron and was liberated. The iron thus liberated immediately deposited itself on the walls of the magnesite brick in the form of a coating. The blow was continued until the coating had reached the thickness desired. Then the Smith process was taken up and thereafter practiced throughout the operation. Did this amount to infringement? We shall not express our views on the validity of the Wheeler and Krejci patent. We are concerned only with what the defendant did and whether it infringed the Smith patent. There would be no doubt of infringement but for the defendant's use of a magnetite coating upon a magnesite lining. About such a coating, however, the Smith patent is silent. While Smith may have known as much about magnetite as other workers in the art, he disclosed little knowledge of it in respect to the operation to which he directed the invention of his patent, and the little he knew inclined him to avoid it. Certain it is that his invention was not directed to protecting the magnesite lining with a magnetite coating. Yet it is equally certain that in the practice of his patented process such a magnetite coating at different temperatures and bath compositions develops and is used generally by his licensees as a temperature indicator and by some of them as a means to protect the magnesite lining. The defendant also learned of the development of magnetite in the slagging stage of bessemerizing copper and learned from Smith's licensees that it might be advantageously used as a protection to the magnesite brick when placed between the brick and the assailing slag. The defendant, like those from whom it gained the information, first heated the converter without the use of silica and thus started the operation by a process which was not Smith's. Having once obtained the magnetite coating on the magnesite lining, it then shifted to the Smith process and practiced it faithfully. But the defendant says that, in doing this, it was protecting the newly established magnetite coating, not the underlying magnesite lining, to which alone Smith's invention is directed. Yet it appears by the evidence that from time to time the magnetite coating will dissolve under temperatures and slag conditions which affect magnetite before they affect magnesite. In consequence, there are times when the magnetite coating will disappear and the magnesite lining will stand 7 F.(2d) 19 bare and exposed to the slag. During these During these times Smith's process comes into full play and performs its function of protecting the exposed magnesite bricks. Thus the defendant used Smith's process initially to protect the newly developed magnetite coating and finally to protect the costly magnesite lining when the coating dissolved. Some one other than Smith may have first conceived the advantage of a magnetite coating on a magnesite lining, that is, the advantage of having a magnetite coating stand between the vulnerable lining and the vicious slag. It is possible (assuming that the Smith process is not directed to the magnetite coating) that the defendant may not have infringed the patent if it had used the process only to protect the magnetite coating which was standing on guard, as it were, against attacks by the slag upon the lining. In other words, a defense in such case may conceivably be based on the distinction between mediate and immediate protection. (On this we express no opinion.) But the defendant did more than that. While using the process of the patent to protect the coating, it always used the process to protect the lining when in the variations of heat and flux content the coating sloughed off and the lining became exposed. Here was the thing to which Smith's process is directed, and here, when the occasions arose, as they repeatedly did, the defendant used Smith's process for the purpose and in the way he had taught the art. We find infringement. Coming finally to the defense of laches, we cannot hold the action is barred on that ground. Although the plaintiff delayed four or five years in bringing suit, the law of Window Glass Machine Co. et al. v. Pittsburgh Plate Glass Co. (C. C. A.) 284 F. 645, announced on the peculiar facts of that case, is not applicable to the very different facts of this case. The decree below is affirmed. SWIFT & CO. v. LICKLIDER. (Circuit Court of Appeals, Fourth Circuit. June 15, 1925.) No. 2358. 1. Domicile 4 (2)-Actual change, and not pretended change, necessary to constitute "change of domicile," and intention and act must concur. To change domicile, there must be an actual and not a pretended change, and intention and [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Change.] 2. Domicile 4 (2)-Changing domicile largely matter of intent, which must be determined in light of all the evidence. Question of changing one's domicile is largely a matter of intent, which must be determined in light of all the evidence, in the circumstances, and reasonable inferences to be drawn therefrom. 3. Bankruptcy 14-Inquiry as to domicile should be determined at commencement of proceedings. Inquiry as to domicile of bankrupt in bank-. ruptcy proceedings should be determined as of time of commencement of proceedings. 4. Bankruptcy 446 - Only questions of law presented on petition to superintend and revise. On petition to superintend and revise in bankruptcy proceedings, only questions of law are presented, and, if lower court's finding is wholly unsupported by testimony, reviewing tribunal must pass on legal question thus presented; but, if same depends on, or calls for rulings based on, disputed facts, or inferences not pass on them, or attempt to correct alleged to be drawn therefrom, reviewing tribunal does errors therein. 5. Bankruptcy 14 Domicile of bankrupt was at place of filing petition, though removing temporarily. Domicile of bankrupt was at place of filing his petition, though he had temporarily located elsewhere, where he left his former domicile without intending to change his residence or domicile, and with express intention to return thereto. Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Northern District of West Virginia, at Martinsburg, in bankruptcy; William E. Baker, Judge. In the matter of the bankruptcy of H. T. Licklider, bankrupt. On petition of Swift & Co., a corporation, to superintend and revise, in matter of law. Petition dismissed. Clarence E. Martin, of Martinsburg, W. Va. (Martin & Seibert, of Martinsburg, W. Va., on the brief), for petitioner. George M. Beltzhoover, Jr., of Charlestown, W. Va., for respondent. Before WOODS, WADDILL, and ROSE, Circuit Judges. WADDILL, Circuit Judge. This is a petition to superintend and revise, in matter of law, proceedings in the District Court of the United States for the Northern District of West Virginia, at Martinsburg, in the matter of H. T. Licklider, bankrupt. The facts of Co. be dismissed, and the bankruptcy prothe case are briefly these: Licklider, being some 46 years of age, had all his life resided, as had his parents before him, at Shepherdstown, Jefferson county, W. Va. For some years prior to August, 1922, he had been engaged in the hardware business in said town under the name of Licklider Corporation, of which he was general manager. On the 7th of August, 1922, the corporation failed and was adjudged bankrupt upon its voluntary petition. By the discontinuance of the corporation, Licklider was left without employment. On the 10th of September, with his wife and child, he left Shepherdstown, going first to Philadelphia, with a view of securing employment and making a satisfactory business connection. He was subsequently in the states of South Carolina and North Carolina, and finally located temporarily at Charlotte, N. C. While there, on the 4th of January, 1923, he filed in the United States District Court for the Northern District of West Virginia at Martinsburg his voluntary petition in bankruptcy, and on the 5th of January was duly adjudged bankrupt. Respondent avers that he left Shepherdstown without intending to change his residence or domicile, and, on the contrary, with the express intention of returning to that place; that he was only temporarily at Charlotte, N. C., without intention or purpose of changing his legal residence from Shepherdstown, W. Va., his absence from the latter place being unavoidable on account of his business, which took him from place to place in several states, but always with the fixed intention to return to his home at Shepherdstown. On the 18th of January, 1923, Swift & Co., the petitioner for review herein, filed its petition in said court, alleging, among other things, that Licklider did not have his present place of business, and had not resided and had his domicile for the greater portion of six months immediately preceding the filing of his petition at Shepherdstown, in the state of West Virginia, as alleged in his bankruptcy petition, and that the United States District Court for the Northern District of West Virginia was without jurisdiction to hear and consider his petition, and prayed that the adjudication be vacated and the petition in bankruptcy dismissed, and that said bankruptcy proceedings be held in abeyance, until the question of jurisdiction was finally determined. Respondent answered, and insisted upon the court's jurisdiction for the reasons stated, and asked that the petition of Swift & ceedings regularly proceeded with. Respondent insisted especially, as a reason for denying the relief asked for by Swift & Co., that the purpose of its motion was to prevent an equal distribution of the bankrupt's assets among his creditors, and to subject the same to the lien of an attachment sued out by that company on the 18th day of September, 1922, from the state court of West Virginia, some eight days after respondent's temporary departure from the state, predicated upon respondent not being a resident thereof. The District Court, on the 18th of January, duly referred the questions arising upon the petition to vacate the adjudication, and respondent's motion to dismiss the same, to Wilbur H. Thomas, Esq., one of the referees of the court, with directions to ascertain and report upon the facts in the case. The sole question involved in the case is whether, at the time of filing the petition in bankruptcy on the 4th of January, 1923, respondent was a resident of and had his domicile at Shepherdstown, in the Northern district of West Virginia; or, to state the proposition differently, whether, by removing from the district within six months of the time of filing his petition, he ceased to be a citizen of the district, and lost his legal residence and domicile therein. If in fact he had not changed his residence and domicile from the Northern district of West Virginia, that was the only place in which his petition in bankruptcy could have been filed, and hence the motion to vacate the adjudication for lack of jurisdiction of the court would necessarily fail, as would the right to a valid attachment based upon the bankrupt's nonresidence in the state also fail. It is by no means a matter of easy ascertainment to say just where one's domicile is, or when and how it may have been acquired. "Every man must have a domicile somewhere, and he can have but one. Mere change of place, is not a change of domicile. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. To constitute a new domicile, two things must concur first, residence in the new locality; second, the intention to remain there." "Until the new domicile is acquired, the old one remains." Conflict of Laws, Michie Digest (Supplement) vol. 2, p. 11. To the same effect will be found Brandenburg on Bankruptcy (4th Ed., 1917) p. 34; 9 R. C. L. "Domicile," p. 542. "There must 7 F.(2d) 21 be an actual, not pretended, change of domicile; in other words, the removal must be 'a real one, animo manendi, and not merely ostensible.'" Morris v. Gilmer, 129 U. S. 315, 9 S. Ct. 289, 32 L. Ed. 690. [1] In determining the question of domicile, sight must not be lost of the fact that there must be an actual and not pretended change of domicile. The intention and act must concur in order to effect such a change of domicile as would create a new residence elsewhere. The Supreme Court of the United States in a comparatively recent case, citing Mitchell v. United States, 21 Wall. 350, 22 L Ed. 584, aptly states the doctrine as follows: "Now, it is elementary that, to effect a change of one's legal domicile, two things are indispensable: First, residence in a new domicile; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change." Sun Printing & Publishing Ass'n v. Edwards, 194 U. S. 383, 24 S. Ct. 696, 48 L. Ed. 1027. The facts in the case were fully heard by the referee, who personally took the testimony, and the District Judge, upon reviewing the same and considering the referee's report, reached the conclusion that the bankruptcy court had jurisdiction, and that the proceeding to vacate the adjudication should be dismissed. [2-4] The question of changing one's domicile is largely a matter of intent, and this fact must be determined in the light of all the evidence, in the circumstances, and the reasonable inferences to be drawn therefrom. The inquiry should be determined as of the time of the commencement of the proceedings (Anderson v. Watt, 138 U. S. 694, 11 S. Ct. 449, 34 L. Ed. 1078), and upon a petition to superintend and revise only questions of law are presented. If the lower court's finding was wholly unsupported by testimony, then this court must pass upon the legal question thus presented; but if the same depends upon or calls for rulings based upon disputed facts, or inferences to be drawn therefrom, then we do not pass upon them, or attempt to correct alleged errors therein. In re Lee, 182 F. 579, 105 C. C. A. 117; In re Frank, 182 F. 794, 105 C. C. A. 226; Hall v. Reynolds, 224 F. 103, 139 C. C. A. 659; In re Wood, 248 F. 246, 160 C. C. A. 324; Sauve v. M. L. More Invest. Co., 248 F. 642, 160 C. C. A. 542; Davis v. AndersonTully Co., 252 F. 681, 164 C. C. A. 521; King Lumber Co. v. National Exchange Bank, 253 F. 947, 165 C. C. A. 388; Yaryan Rosin Co. v. Isaac (C. C. A.) 270 F. 710; In re Miltones, Inc. (C. C. A.) 286 F. 806. [5] Upon full consideration of the case, having due regard to the decision of the District Court before mentioned, we are convinced that the same was correctly decided, and that the petition to review and revise should be dismissed. Dismissed. ALLEN, Collector of Internal Revenue, v. (Circuit Court of Appeals, Eighth Circuit. No. 6787. Appeal and error 209(1)—Appellate court cannot pass on sufficiency of evidence to sustain findings and judgment of trial court, if such question was not raised at trial. Regardless of Act Feb. 26, 1919, amending Judicial Code, § 269 (Comp. St. Ann. Supp. 1919, § 1246), and providing that on hearing of appeal, etc., court shall give judgment after exregard to technical errors, etc., which do not amination of entire record before it, without affect substantial rights of parties, appellate court cannot pass on sufficiency of evidence to sustain findings and judgment of trial court, if such question was not raised at trial. Petition for Rule to Show Cause. Action by the Cartan & Jeffrey Company against Arthur B. Allen, Collector of Internal Revenue for the District of Nebraska, to recover income taxes. On petition of defendant for an order to show cause why the judgment affirming a judgment for plaintiff should not be set aside and a rehearing had. Petition denied. For former decision, see 5 F. (2d) 1011. James C. Kinsler, U. S. Atty., of Omaha, fendant in error. Before SANBORN, LEWIS, and KEN- SANBORN, Circuit Judge. On petition of Arthur B. Allen, collector of internal revenue for the district of Nebraska, for an order to show cause why the judgment of this court in this action, rendered on January 28, 1925, affirming the judgment below, should not be set aside and a rehearing had. |