The Fair v. Kohler Die Specialty Company

Citation33 S.Ct. 410,57 L.Ed. 716,228 U.S. 22
Decision Date24 March 1913
Docket NumberNo. 169,169
CourtUnited States Supreme Court

Messrs. David S. Wegg and Walter H. Chamberlin for appellant.

Messrs. Frank T. Brown and Francis A. Hopkins for appellee.

Mr. Justice Holmes delivered the opinion of the court:

This is a bill in equity, brought by the appellee, and Illinois corporation, against the Fair, also an Illinois corporation, for an injunction against the Fair's making and vending certain patented gas heating devices, or selling such devices of the plaintiff's manufacture at less than $1.50 each; for an account and for triple damages. The bill alleges that the plaintiff has the sole and exclusive right to make and sell the devices throughout the United States, and that the defendant, with full notice, has sold and is selling the same without license, in violation of the plaintiff's right. It then goes on to allege that the plaintiff, when it sells, imposes the condition that the goods shall not be sold at less than $1.50, and attaches to the goods a notice to that effect, and that any sale in violation of the condition, or use of the aritcle, if so sold, will be an infringement of the patent. It further avers that the defendant obtained a stock of the devices with notice of the conditions, and sold them for $1.25 each, in infringement of the plaintiff's rights under the patent.

The Fair appeared specially and pleaded that all the devices in question sold by it were purchased from the plaintiff by a jobber, that the jobber paid the full price to the plaintiff, that upon these facts there was no question arising under the patent or other laws of the United States, and that the court had no jurisdiction of the case. The case was set down for hearing on the plea, so that the foregoing allegations of fact must be taken to be true. Farley v. Kittson, 120 U. S. 303, 314, 30 L. ed. 684, 688, 7 Sup. Ct. Rep. 534. The court, in deference to Victor Talking Mach. Co. v. The Fair, 61 C. C. A. 58, 123 Fed. 424, maintained its jurisdiction, and as the defendant did not answer within the time allowed, took the bill as confessed and made a decree for the plaintiff. The judge stated that he did not feel at liberty to give a formal certificate, but added what appears from the record, that the defendant did nothing except to file the above plea. The appeal is upon the question of jurisdiction alone. There is no uncertainty or ambiguity, and we are of opinion that the case is properly here. Petri v. F. E. Creelman Lumber Co. 199 U. S. 487, 492, 50 L. ed. 281, 284, 26 Sup. Ct. Rep. 133.

Obviously the plaintiff sued upon the patent law, so far as the purport and intent of the bill is concened. It was a resident of the same state as the defendant, and could have had no other ground. In the earlier paragraphs of the bill it charged an infringement of its patent rights in general terms, and it sought triple damages, which it could have done only by virtue of the statute. It is true that later it set up the sale at $1.25 as an infringement, and that we may guess that this is the only one, although it does not say so. But if that is the plaintiff's only cause of action, still the plaintiff relies upon it as an infringement and nothing else; so that, good or bad, the cause of action alleged is a cause of action under the laws of the United States.

Of course, the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a 'suit arising under' the patent or other law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred by the defense, even when anticipated and replied to in the bill. Devine v. Los Angeles, 202 U. S. 313, 334, 50 L. ed. 1046, 1053, 26 Sup. Ct. Rep. 652. Conversely, when the plaintiff bases his cause of action upon an act of Congress, jurisdiction cannot be defeated by a plea denying the merits of the...

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  • Julian v. Rigney
    • United States
    • U.S. District Court — Western District of Virginia
    • March 24, 2014
    ...the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law."); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) ("Of course, the party who brings a suit is master to decide what law he will rely upon."); Merrell Dow Pharmaceuticals, In......
  • Maloney v. Sheehan
    • United States
    • U.S. District Court — District of Connecticut
    • June 27, 1978 essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U.S. 22, 25 33 S.Ct. 410, 57 L.Ed. 716 (1913)." Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379-1380, 39 L.Ed.2d 577 (1974). The question of wheth......
  • In Re Joseph Francis Swain
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • September 27, 2010
    ...Women's Health Clinic, 506 U.S. 263, 285, 113 S.Ct. 753, 767-768, 122 L.Ed.2d 34 (1993); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411-412, 57 L.Ed. 716 (1913). Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is p......
  • College of Charleston Foundation v. Ham
    • United States
    • U.S. District Court — District of South Carolina
    • January 24, 2008
    ...federal jurisdiction by exclusive reliance on state law. Id. (internal citations omitted); see also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) ("Of course, the party who brings a suit is master to decide what law he will rely upon.") (Holmes, ......
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4 books & journal articles
  • Begging the Federal Question: Removal Jurisdiction in Wrongful Discharge Cases
    • United States
    • Seattle University School of Law Seattle University Law Review No. 20-01, September 1996
    • Invalid date
    ...9 Indiv. Empl. Rts. Cas. (BNA) 59 (D. Or. 1993). 254. Lyster, 829 F. Supp. at 1169 (quoting The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 25 255. Id.; cf. Ames, supra note 37, at 1237 n.47:The situation might have been different had [the plaintiff] sought to invoke federal jurisdic......
  • Gully and the Failure to Stake a 28 U.s.c. Section 1331 "claim"
    • United States
    • University of Whashington School of Law University of Washington Law Review No. 89-2, December 2019
    • Invalid date
    ...Inc., 438 U.S. 59, 71-72 (1978) (similar); Montana-Dakota Util., 341 U.S. at 249 (similar). 179. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). 180. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996); see also Primax Recoveries, Inc. v. Gunter, 433......
  • The Ever-expanding Complete Preemption Doctrine and the Copyright Act: Is This What Congress Really Wanted?
    • United States
    • University of North Carolina School of Law North Carolina Journal of Law and Technology No. 7-2005, January 2005
    • Invalid date
    ...does determine whether he will bring a 'suit arising under' the . . . law of the United States." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). 5 Freeman v. Bechtel, 936 F. Supp. 320, 324 (M.D.N.C. 1996) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). 6 Fe......
  • Forum Shopping Within the United States Patent and Trademark Office.
    • United States
    • Case Western Reserve Law Review Vol. 70 No. 3, March 2020
    • March 22, 2020
    ...was based "in whole or in part" on patent law). (127.) Vornado, 535 U.S. at 831 (quoting The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (128.) Thompson, Jr., supra note 108, at 526-27. (129.) See Leahy-Smith America Invents Act, Pub. L. No. 112-29, [section] 19(b), 125 Stat. 28......

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