the while in custody of the United States marshal, to be tried in the state court as for the crime of grand larceny. It may be true, yet this court, having no concern with the matter, does not express any opinion thereon, that in view of the jurisdiction of this court attaching to the person of the defendant in the behalf and respects hereinabove enumerated and referred to, the superior court of the state of California could and did acquire no jurisdiction to try him, at the time it did, as for an asserted violation of the law of the state of California. If that be so, and if that court lacked jurisdiction, it will be so determined in appropriate tribunals. I discover nothing, however, based either upon. reason or authority, from which it may now be adjudged that the action of this court, in temporarily staying the execution of the judgment of this court, served to divest this court of jurisdiction to require petitioner to stand for judgment as for the admitted violation of the federal law. It would be a strange and bold assertion, in my judgment, for this court, possessing the amplest jurisdiction as above referred to, to hold that it had completely divested itself of all jurisdiction in the premises merely by an order staying execution. I see nothing in the decision relied upon by petitioner (In re Jennings [C. C.] 118 Fed. 479) requiring such conclusion.

It is obvious, of course, that as against the protest of the petitioner, which protest must be considered as having been impliedly made, the court could not, by granting a stay of execution, add to the length of time that he should be deprived of his liberty. In that behalf, I am persuaded that petitioner is entitled to have subtracted from the total period of incarceration adjudged against him, the length of time elapsed since the rendering of the judgment herein. In re Jennings, supra.

The order of the court therefore will be that the writ of habeas corpus herein is discharged, and the prisoner is remanded to the custody of the United States marshal, to abide the judgment of this court heretofore delivered herein. The commitment eventuating from that judgment, being a process emanating from this very court, and being still within the control of this court, should now be recalled and amended to conform to the opinion and judgment rendered necessary herein. An order will be entered, therefore, recalling the commitment and decreeing its amendment, to the effect that the term of imprisonment heretofore adjudged upon petitioner will begin to run as from the date of pronouncement of the aforementioned judgment herein.

LOWRY et al. v. HERT.

(District Court, W. D. Kentucky. May 11, 1921.)

No. 88.

1. Removal of causes 19 (1)—Cause removable, if one of several causes of action stated arises under laws of United States.

If any one of several causes of action stated in plaintiffs' pleading in a state court arises under the Constitution or laws of the United States, the cause is removable, though joined with other causes not so arising. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(273 F.)

2. Removal of causes 19 (6)—Suit held removable as arising under patent laws.

A suit by the heirs at law of a deceased patentee to set aside a conveyance of the patents by his administrator on the grounds of want of power in the administrator and fraud of defendant, with a prayer that plaintiffs be declared the owners of the patents and recover the value of their use while so withheld, involves title to the patents and rights thereunder, and is removable from a state court as one arising under the patent laws. In Equity. Suit by Zetta McG. Lowry and others against Alvin T. Hert. On motion to remand to state court. Denied.

J. W. Harlan, of Danville, Ky. (John W. Becker, of Indianapolis, Ind., and George E. Stone, of Danville, Ky., of counsel), for plaintiffs. Charles G. Middleton, of Louisville, Ky. (Humphrey, Crawford & Middleton, of Louisville, Ky., of counsel), for defendant.

WALTER EVANS, District Judge. The plaintiffs are Zetta McG. Lowry, individually and as guardian of the infant, Jean Bullitt Lowry (under appointment by the county court of Fayette county, Ky., in December, 1920), Margaret Van Werveke, Helen Lowry, and Thomas Lowry. The three last named are citizens of New York, while the two first named are citizens of Kentucky. They are the widow and children of Cuthbert B. Lowry, who died in November, 1908, and who was then the owner of five letters patent issued by the United States, though one Richard Bernhard had a nominal interest in three of them. The defendant is a citizen of Kentucky.

[1] Plaintiffs commenced this action in the Jefferson circuit court. on the 6th day of December, 1920. Their petition was framed in accordance with the rules of practice prescribed by the Kentucky Code of Practice, and is of course what we now speak of as their bill of complaint. The defendant in due time and manner filed in the state court his petition for the removal of the action to this court, upon the ground that plaintiffs' causes of action as alleged in their pleading all arose under the Constitution and laws of the United States. The plaintiffs have moved the court to remand the action to the Jefferson circuit court; they insisting that their causes of action as stated in their pleading do not, and that no one of them did, arise under the Constitution or laws of the United States, within the meaning of the Removal Acts (Comp. St. §§ 1010-1021), and thus is presented the one question now to be considered, namely: Do the Constitution and laws of the United States give this court exclusive jurisdiction of any one of the causes of action set up in the three paragraphs of plaintiffs' bill of complaint?

The importance of this question has brought about the necessity for the very careful consideration which the court has given to plaintiffs' motion to remand. In doing this, however, the court has remembered that, if either one of the causes of action set up by plaintiffs in the three paragraphs of their pleading arises under the Constitution or laws of the United States, the jurisdiction of this court of tnat cause of action cannot be ousted by adding others which do not so arise. Rail

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

road Co. v. Mississippi, 102 U. S. 135, 141, 26 L. Ed. 96. This naturally at the outset brings us to the consideration of the cause of action set up in paragraph 1 of the bill.

[2] Without going into greater detail, it may suffice to say that the first paragraph alleges that at the time of the death of Cuthbert B. Lowry, on November 11, 1908, he was the owner of five definitely described letters patent which had theretofore been issued to him in due course by the United States, but that some interest in each or all of them had theretofore been hypothecated by the deceased to the Fletcher American National Bank of Indianapolis to secure certain then existing liabilities, which liabilities, however, were far less than the value of the patents. It is alleged that on the 27th day of November, 1908, the county court of Fayette county, Ky., appointed the Security Trust Company, of Lexington, Ky., administrator of said Cuthbert B. Lowry, deceased, and that thereafter, by the various coercive, deceitful, and fraudulent methods and acts elaborately stated and described in the bill, the defendant secured the transfer of each of said patents to Stoughton A. Fletcher, as trustee for himself and the defendant, and ultimately to the defendant himself, through the medium. of other transfers thereof to the Anglo-American Tar Products Company and then to defendant, and that by means of said fraudulent acts the administrator was induced to make and did make the transfer of said five letters patent before it concluded its work as administrator, though, having afterwards completed its work, it was discharged. It is also alleged in the first paragraph of the bill that the plaintiffs were by the same means, and the same coercive, deceitful and fraudulent representations and conduct, induced to and did acquiesce in the said transfers.

Without at present referring to the statements made or the relief sought by the second and third paragraphs of the bill, a question of prime importance to all parties alike is: Does paragraph 1 of the bill of itself state a cause of action under section 24, clause 7 (Comp. St. $991 [7]), and section 28, clause 1 (section 1010), of the Judicial Code? Section 24 of the Code provides that

"The District Courts shall have original jurisdiction as follows: Seventh. Of all suits at law or in equity arising under the patent laws."

And section 28 provides that

*

*

"Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States of which the District Courts of the United States are given original jurisdiction may be removed by the defendant or defendants therein to the District Court of the United States for the proper district."

With these statutory provisions in mind, it is altogether obvious that the only real question to be now decided is whether the cause of action stated by the plaintiffs in the first or any other paragraph of their bill is one arising under the patent laws, which, under the Constitution. of the United States, authorize the issuing of patents to inventors. If

(273 F.)

so, the jurisdiction may be in this court; but otherwise it may be in the state court, and not here.

Clause 8, section 8, article 1, of the Constitution, in express terms gives Congress the power to secure to inventors for a limited time the "exclusive right" to their discoveries, and the patent laws provide ways for making this provision effective. No one else can share in this exclusive right without the inventor's consent. It is therefore too clear to require argument that rights given by a patent lawfully granted under those provisions of the Constitution are rights granted by the United States, and that any cause of action based upon the patent itself arises under the patent laws of the United States within the meaning of the Judicial Code. Here the patents were, granted by the United States to Cuthbert B. Lowry. He did not, before his death, part with his title thereto; but his administrator, in form, at least, did transfer that title. The plaintiffs bring this action, not upon a contract, but to have what purports to be a contract not made by them held to be void, and that plaintiffs, as heirs of the patentee, be adjudged to be the owners of the patents. And in this connection we may note that section 4884 (8 Comp. Stats. p. 10031) provides that:

"Every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States, and the territories thereof, referring to the specification for the particulars thereof. A copy of the specification and drawings shall be annexed to the patent and be a part thereof."

After setting out in great detail the facts relied upon as a basis for the relief desired, plaintiffs, at the close of the first paragraph of the bill, pray as follows:

"Wherefore they pray that the said contract and assignment of the letters patent and applications by the administrator to Stoughton A. Fletcher as trustee be set aside and canceled by this court and held for naught, because same was obtained and procured by this defendant through fraud, duress, and coercion, and because there was no consideration therefor, and that for said reasons the said assignment from Fletcher, trustee, to the Anglo-American Tar Products Company and from the Anglo-American Tar Products Company to this defendant, be held void, and that it be now adjudged that these plaintiffs are now the owners of said letters patent and the patents granted upon said applications, and that they be adjudged to recover of this defendant a sum which will reasonably compensate them for the loss of the use of said patents since the 22d day of January, 1909, and for all equitable relief to which they may appear entitled, and for their costs herein expended."

This prayer, when analyzed, may not only throw light on the question of the nature of plaintiffs' first paragraph, but may greatly aid in ascertaining the foundation and purposes of the action. It asks, though somewhat progressively, for four phases of relief, viz.: (1) That the several contracts for the assignments of the letters patent made by others than themselves, and which the bill describes, be set aside and canceled, because they were obtained and procured by fraud, duress, and coercion, and without consideration therefor; (2) that the plaintiffs be adjudged to be the owners of said letters patent and the patents granted upon the applications therefor; (3) that plaintiffs be adjudged

to recover of the defendant a sum which will reasonably compensate them for the loss of the use of the said patents since the 22d day of January, 1909; and (4) for all equitable relief to which they may be entitled.

If we may assume that the first and fourth phases of the relief asked by the plaintiffs do not arise under the patent laws, but have a basis only in general principles of equity, the question still remains whether the other relief asked arises under those laws? We again recall that plaintiffs pray (a) that they be adjudged to be the "owners" of all of said letters patent granted upon the applications therefor; and (b) that they be adjudged a recovery from the defendant of a sum which will reasonably compensate them for the loss of the use of the said patents since the 22d day of January, 1909.

Can the prayer that they be adjudged to be the owners of said patents be based upon anything except that they have the right to the legal title thereto, clouds upon which they in effect claim should be removed, or can a judgment for compensation for use of the patents be based upon anything except "rights" under the patent laws? And again, can the fact be concealed by cautious pleading that the prayer for a judgment for compensation for the use of the patents is based upon a claim of legal title thereto, and the consequent claim that the rights of plaintiffs have been infringed or encroached upon?

It is so well settled as to be elementary that, when the United States grants a patent for a new invention in the arts, it confers upon the patentee an "exclusive" property in the patented invention, which property nobody can appropriate without the patentee's consent. The inventor's right and title thereto are thus altogether based upon the Constitution and laws of the United States, and, as we have intimated, it would seem to follow, as of course, that any right to any judgment that the plaintiffs (who are the heirs of the patentee) are the owners of the patents or any judgment in their favor for the recovery of money for any infringement of or encroachment upon such exclusive right must be based upon a claim of title in the patents themselves.

It would seem, therefore, that any action at law or in equity which seeks to remedy such a situation inevitably and necessarily grows out of and is based upon a right created by and claimed under the patents, and therefore upon a right which arises under the patent laws of the United States. And as has been intimated, if one part of the relief demanded is based upon a claim of title to the patents, it is sufficient, notwithstanding other claims are based upon other grounds. Railroad Co. v. Mississippi, 102 U. S. 141, 26 L. Ed. 96, supra, where it was said:

"That it is not sufficient to exclude the judicial power of the United States from a particular case that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it."

At this point we may say that in many cases in many courts, state and federal, there have been interpretations of the provisions of the