Elliott Core Drilling Co. v. Smith

Appeal from a final decree dismissing the bill of complaint in a patent infringement suit.

Elliott Core Drilling Company, appellant herein, is a California corporation engaged in the business of performing core drilling service and selling core drills. H. C. Smith, doing business under the name of H. C. Smith Manufacturing Company, appellee herein, is in the same business. Each of the parties has a patent on a core drill, and each brought suit against the other charging infringement. The suits were consolidated for hearing, but at the close of the trial the Smith suit was dismissed, appellee advising the trial court that the two forms of core drill were so identical that prior art anticipating one would necessarily have the same effect on the other. Appellee’s patent is No. 1,600,073, issued September 14, 1926, and that of appellant, known as the Oliver patent, is No. 1,-624,146, issued August 12,1927, to Fay Oliver. Both patents were eopending in the Patent Office. On May 26, 1924, prior to- the issuance of the Oliver patent, appellant made a contract with appellee and one Phipps to pay a royalty on the Phipps flush type of bit. Payments of royalty were made under the contract.…