Hamer v. MacClatchie

PRESTON, J.

This cause, submitted upon motion of plaintiffs to dismiss defendants’ appeal or to affirm the judgment, may be disposed of by a brief discussion leading to adoption of the latter course. The word “plaintiff” will refer to plaintiff Hamer, the coplaintiff being his assignee of a part interest in the cause. The word “defendant” will refer to the defendant J. Warren MacClatchie.

About July 9, 1923, plaintiff, an inventor of oil-well tools and machinery, filed a patent application No. 650,289, for a mechanical device known as a tong puller to break joints in well-drilling drill pipe, the full assembly thereof comprising a cam and cathead, together with a bar, bearing slide and a pulling line. He exhibited his plans to defendant and conferred with him relative to possible manufacture and marketing of the device. These negotiations bore no fruit. Later, about November 18, 1925, defendant filed an application for letters patent, No. 69,731, on a similar apparatus. In January, 1926, plaintiff told defendant that claims had been allowed on his patent application of such breadth and scope that defendant’s device would infringe them and he permitted defendant to inspect his patent file. After examining the patent papers, defendant, concurred in plaintiff’s

[722]

view. Soon thereafter, and on January 16, 1926, these parties executed the written contract which forms the basis of this action.

Said contract recited that plaintiff had made application for a patent as aforesaid and that defendant was engaged in the manufacture of various mechanical devices and oil-well appliances and was desirous of securing the sole right to manufacture and sell plaintiff’s device under the patent throughout the United States; that, therefore, plaintiff granted to defendant the sole right to manufacture and sell said invention covered by said patent application during the term of patent and defendant agreed, in consideration of said right, to use every reasonable endeavor to introduce the device into general use and promote its manufacture and sale and to pay plaintiff, for each device or part thereof sold, a royalty of ten per cent of the gross selling price. The contract then provided: ‘‘Whereas, the party of the second part (plaintiff) agrees to cooperate with and render whatever assistance is‘necessary respecting the mode and use of said device, and that they further agree to turn over any and all improvements of said inventions, invented or devised by any either or all of them collectively or individually, such improvements to be for the benefit of all the parties herein mentioned, and it is also agreed between the parties hereto that there will be no additional royalties paid for any improvements or additions to said Hamer Tong Pulling device, such royalty to remain as herein before mentioned. ...”