Machinery Co. v. United States, 258 U. S. 451. But the debates on § 3, on the floor of the Senate, disclose that it was well known to that body that one of the contentions in the pending cause, United States v. United Shoe Machinery Co., 247 U. S. 33, was that it was permissible, in any circumstances, for a lessor to tie several patented articles together. They show that the proponents of the bill were as much concerned that that practice should be prohibited as that the tying of non-patented to patented articles should be ended. Cong. Rec., Vol. 51, Part 14, 63rd Cong., 3d Sess., 14275. The phrase, "whether patented or unpatented" as used in § 3 is as applicable to the one practice as to the other. It would fail of the purpose which it plainly expresses if it did not operate to preclude the possibility of both, and to make the validity of the tying clause a matter to be determined independently of the protection afforded by any monopoly of the lessor. Such, we think, must be taken to be the effect of the section unless its language and history are to be disregarded. Under its provisions the lawfulness of the tying clause must be ascertained by applying to it the standards prescribed by § 3 as though the leased article and its parts were unpatented.

3. Despite the plain language of § 3, making unlawful the tying clause when it tends to create a monopoly, appellant insists that it does not forbid tying clauses whose purpose and effect are to protect the good will of the lessor in the leased machines, even though monopoly ensues. In support of this contention appellant places great emphasis on the admitted fact that it is essential to the successful performance of the leased machines that the cards used in them conform, with relatively minute tolerances, to specifications as to size, thickness and freedom from defects which would affect adversely the electrical circuits indispensable to the proper

operation of the machines. The point is stressed that failure, even though occasional, to conform to these requirements, causes inaccuracies in the functioning of the machine, serious in their consequences and difficult to trace to their source, with consequent injury to the reputation of the machines and the good will of the lessors. There is no contention that others than appellant cannot meet these requirements. It affirmatively appears, by stipulation, that others are capable of manufacturing cards suitable for use in appellant's machines, and that paper required for that purpose may be obtained from the manufacturers who supply appellant. The Remington Rand company manufactures cards suitable for its own machines, but since it has been barred by the agreement with appellant from selling its cards for use in appellant's machines, its cards are not electrically tested. The Government, under the provisions of its lease, following its own methods, has made large quantities of the cards, which are in successful use with appellant's machines. The suggestion that without the tying clause an adequate supply of cards would not be forthcoming from competitive sources is not supported by the evidence. "The very existence of such restrictions suggests that in its absence. a competing article of equal or better quality would be offered at the same or at a lower price." Carbice Corporation v. American Patents Development Corp., supra, 32, Note 2, quoting Vaughan, Economics of Our Patent System, 125, 127. Appellant's sales of cards return a substantial profit and the Government's payment of 15% increase in rental to secure the privilege of making its own cards is profitable only if it produces the cards at a cost less than 55% of the price charged by appellant.

Appellant is not prevented from proclaiming the virtues of its own cards or warning against the danger of using, in its machines, cards which do not conform to the

298 U.S.

Opinion of the Court.

necessary specifications, or even from making its leases conditional upon the use of cards which conform to them. For aught that appears such measures would protect its good will, without the creation of monopoly or resort to the suppression of competition.

The Clayton Act names no exception to its prohibition of monopolistic tying clauses. Even if we are free to make an exception to its unambiguous command, see United States v. United Shoe Machinery Co., 264 Fed. 138, 167;1 Auto Acetylene Light Co. v. Prest-O-Lite Co., 276 Fed. 537; Pick Manufacturing Co. v. General Motors Corp., 80 F. (2d) 641; cf. Radio Corporation v. Lord, 28 F. (2d) 257, we can perceive no tenable basis for an exception in favor of a condition whose substantial benefit to the lessor is the elimination of business competition and the creation of monopoly, rather than the protection of its good will, and where it does not appear that the latter can not be achieved by methods which do not tend to monopoly and are not otherwise unlawful.

Affirmed.

MR. JUSTICE ROBERTS took no part in the consideration. or decision of this case.

In this case the Government sought no review of the determination of the district court that the tying clause was valid so far as it requires lessees to purchase of the lessor supplies and parts of the leased machines. See United Shoe Machinery Co. v. United States, 258 U. S. 451.

Argument for Petitioner.

TIPTON v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 664. Argued March 31, 1936. Decided April 27, 1936.

1. The remedy of an employee of a railway which is a highway of interstate commerce for personal injuries suffered while he is engaged about intrastate transportation, and caused by a breach of the Federal Safety Appliance Acts, is the remedy afforded by the common or statutory law of the State. P. 146.

2. In such cases, the State is at liberty to afford any appropriate remedy for breach of the duty imposed by the federal Acts, including the remedy of workmen's compensation; and the state law on the subject is binding on the federal courts. P. 147.

3. In California, the exclusive remedy in such cases is under the state workmen's compensation act. P. 149.

4. A construction of a state statute by the state courts resulting from their erroneous conception of federal statutes, is not binding on the federal courts. P. 151.

78 F. (2d) 450, affirmed.

CERTIORARI, 297 U. S. 700, to review the affirmance of a judgment dismissing an action by a railway employee against the Railway Company to recover damages for personal injuries alleged to have been caused by a defective coupling on a freight car, used in violation of the Federal Safety Appliance Acts.

Mr. Herman A. Bachrack submitted for petitioner.

It is now beyond dispute that the Safety Appliance Acts apply to cars in use on a highway of interstate commerce regardless of the type of commerce (interstate or intrastate) in which the cars are being used. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Moore v. Chesapeake & Ohio Ry. Co., 291 U. S. 205; 45 U. S. C. 8.

It is also beyond dispute that the duty thus laid upon the railroad gives rise to a correlative right in favor of an

Argument for Petitioner.

298 U.S.

stürmes petimately injured by reason of a violation of us fury regardless of the type of commerce in which the antürmer was engaged when injured. Cases supra; Fair

F. & E. R. v. Meredith, 292 U. S. 589; United Stark. Cams 297 U. S. 175.

Save this right is a creation of the federal statute, it is le proceed that, if the remedy is also a creation of ma seperi sate, no mandatory state Workmen's Comwisatan Art destroy either. Ward v. Erie R. Co.. CNN er. Sen. 256 U. S. 696, and cases cited. Assuming that he remedy afforded for the violation ------ 307 3 creation of federal law, but has been States, the question still remains as to whether State an abrogate the right of action given by ala by adopting a compulsory compensation

the lesion of this Court in Texas & Pacific Ry. 7.5. 241 U. S. 33. to the decisions of this Court ne 148 Oetober Term hereinafter referred to, it was thinst unaus opinion of the bar and of the state bench that the right and the remedy s of the federal statute. The arguments may tra the taste soundness of this position and the reaI reset forth in the Rigsby case, supra, and Sed in the majority opinion of the Court New York in Ward v. Erie R. Co., supra.

- `s been adhered to in the following cases ng servalsy compensation acts: McMahon v. 27) U. S. 628; Ross v. Schooley, 257 Sem 249 U. S. 615; Ward v. Erie R. Co., Vert, den.. 256 U. S. 696; Geraghty v. Le3. Co., 70 F. (2d) 300; Leuthe v. Erie R. 151; Miller v. Reading Co., 292 Pa. 44; SALON, H. & S. E. R. Co., 284 Ill. 301; Flanix 1.8 Kan. 133; Kraemer v. Chicago & N. W.