CHAPTER XVIII - PATENT SUITS
The Wrights had found that patents covering the basic features of their invention were not enough protection against infringers. Indeed, having the technical details on file in the Patent Office, where anyone who desired might see them, was, in a way, to the advantage of those who would help themselves to an inventor’s work and ideas. Only a decision in the courts could determine the justice of an inventor’s claims. But the courts work slowly and legal procedure is expensive. Except for their good fortune – never contemplated when they started – in realizing substantial sums from their invention, the brothers might not have been able to carry on the fight that finally gave them world-wide recognition as the first to contrive a successful flying-machine.
Altogether the brothers had active part in a dozen different suits in the United States against infringers – and there were suites in France and Germany in each of which about a dozen infringers were involved. Most of the suites in the United States did not go beyond the early stages, as the infringers were not disposed to continue after a preliminary injunction had been issued. But three suits were of special importance. One of these was against Louis Paulhan, French aviator, who was about to give exhibitions in the United States, using planes made in France. Another was against Claude Grahame-White, English aviator, also about to give exhibitions in the United States with planes that infringed the Wright patents. The most important suit of all was against the Herring-Curtiss Co. and Glen H. Curtiss. This case was bitterly contested and was carried up to the U. S. Court of Appeals. It was brought by the Wright brothers, late in 1909, but The Wright Co., formed shortly afterward succeeded the brothers as complainants.
Because of the importance of this suit in aviation history, it is worth while to examine the background of the relations between the Wrights and Glen Curtiss. The Wrights’ personal acquaintance with Curtiss began in May, 1906, when he wrote to them in regard to the light motors of which he was a manufacturer. Then in early September, 1906, Curtiss visited the Wright office and workshop. He was brought there by his friend, Captain Thomas S. Baldwin, a well-known aeronaut, who was giving exhibition flights in Dayton with his dirigible balloon on which he used a motor he had persuaded Curtiss to build for him. It was to make repairs on that motor that Curtiss had come to Dayton.
After that meeting, the four men, Curtiss, Baldwin, and the Wrights, were together much of the time for several days. When in response to questions about their work, the Wrights showed a number of photographs of their flights made at the Huffman pasture during the two previous years. Curtiss seemed much astonished. He remarked that it was the first time he had been able to believe anyone had actually been in the air with a flying-machine.
Long afterward, in an interview in the New York Times (February 28, 1914), Baldwin recalled the many talks he and Glen Curtiss had with the Wrights in that fall of 1906. “I sometimes suggested to Curtiss,” Baldwin told the interviewer, “that he was asking too many questions, but he kept right on. The Wrights had the frankness of schoolboys in it all and had a rare confidence in us. I am sure Curtiss at that time never thought of taking up flying.”
A year after the Wrights’ first meetings with Curtiss, in October, 1907, the Aerial Experiment Association was formed by Alexander Graham Bell and others, with headquarters first in Nova Scotia and later at Hammondsport, N. Y., where Curtiss lived. He became “Director of Experiments.” This was the first time Curtiss had been directly connected with aviation except as a manufacturer of motors, and three months later, a letter he wrote to the Wrights indicated that motors rather than aviation were still his chief interest. “I just wish to keep in touch with you,” he wrote, “and let you know that we have been making considerable progress in engine construction.” After listing and describing the various engines he was building, he proposed to furnish to the Wrights “gratis” one of his fifty-horsepower engines. But the offer was not accepted. The letter mentioned Baldwin was a “permanent fixture in this establishment” – a fact not without importance, considering information that Baldwin was later to reveal. Further on in the letter. Curtiss told of Dr. Bell’s reading to the members of the Aerial Experiment Association the United States Government’s specifications for the purchase of a flying-machine, and added: “You of course, are the only persons who could come anywhere near doing what is required.”
About a fortnight after receipt of that letter from Curtiss, the Wrights got another letter dated January 15, 1908, written on Aerial Experimentation Association stationery, and signed by Lieutenant T. Selfridge, whose name appeared on the letterhead as secretary of the association. (This was the same Selfridge who was killed a few months later in the tragic airplane accident at Fort Myer.) In that letter, Selfridge, on behalf of the Experiment Association, said:
I am taking the liberty of writing you and asking your advice on certain points connected with gliding experiments, or rather glider construction, which we started here last Monday.
Will you kindly tell me what results you obtained on the travel of the center of pressure both on aerocurves and aeroplanes?
Also, what is a good, efficient method of constructing the ribs of the surfaces so that they will be light and yet strong enough to maintain their curvature under ordinary conditions, and a good means of fastening them to the cloth and upper lateral cords of the frames?
I hope I am not imposing too much by asking you these questions.
Supposing the information would be used only for scientific purposes, the Wrights obligingly replied at once as follows:
You will find much of the information you desire in the addresses of our Mr. Wilbur Wright before the Western Society of Engineers, published in the Journals of the Society of December, 1901, and August 1903.
The travel of the center of pressure on aeroplanes is from the center at 90 degrees, toward the front edge as the angle becomes smaller. The center of pressure on a curved surface is approximately at its center at 90 degrees, moves forward as the angle is deceased until a critical angle is reached, after which it reverses, and moves toward the rear edge. The critical angle varies for different shaped curves, but is generally reached at some angle between 12 and 18 degrees. With the angles used in gliding flight the travel will be between the center of the surface and a point one-third back from the point edge.
The methods of construction used in our gliders are fully described in an article by Mr. Chanute in the Revue des Sciences in 1903 (we do not remember the month) and in the specifications of our United States patent, No. 821,393.
The ribs of our gliders were made of second growth ash, steamed and bent to shape.
Selfridge replied in a few days saying he had been able to obtain a copy of the patent and would endeavor to get the other references the Wrights had supplied.
The data must have been useful to the Aerial Experiment Association for early the following summer, Glenn Curtiss, “Director of Experiments” had a power-driven airplane, called the “June Bug,” in which he made a flight on July 4, 1908, at Hammondsport. That flight created the belief in the minds of many who were not fully informed that the Aerial Experiment Association must have done an amazing job of original research. This belief was encouraged by the fact that after the Aerial Experiment Association began building and experimenting with flying-machines, using much information they had obtained from the Wrights, they neglected, in public statements about their work, to so much as mention the Wright brothers.
Soon after the report of the flight of the “June Bug,” there appeared in the press a statement that the Aerial Experiment Association was disbanding, and that Glenn H. Curtiss was going to engage in exhibition flying. That news let Orville Wright to send to Curtiss the following letter:
I learn from the Scientific American that your “June Bug” has movable surfaces at the tips of the wings, adjustable to different angles on the right and left sides for maintaining the different angles on the right and left sides for maintaining the lateral balance. In our letter to Lieutenant Selfridge of January 18, replying to his of the 15th, in which he asked for information on the construction of flyers, we referred him to several publications containing descriptions of the structural features of our machines, and to our U. S. patent No. 821,393. We did not intend, of course, to give permission to use the patented features of our machine for exhibitions or in a commercial way.
This patent broadly covers the combination of sustaining surfaces to the right and left of the center of a flying-machine adjustable to different angles, with vertical surfaces adjustable to correct inequalities in the horizontal resistances of the differently adjusted wings. Claim 14 of our patent No. 821,393 specifically covers the combination which we are informed you are using. We believe it will be very difficult to develop a successful machine without the use of some of the features covered in this patent.
The commercial part of our business to taking so much of our time that we have not been able to undertake public exhibitions. If it is your desire to enter the exhibition business we would be glad to take up the matter of a license to operate under our patents for that purpose.
Curtiss replied that, contrary to newspaper reports, he did not expect to do anything in the way of exhibitions; that his flights had been in connection with the Aerial Experiment Association’s work. The matter of the patents he had referred, he said, to the Secretary of the Association.
A few weeks later, when Orville went to Washington in preparation for the Fort Myer tests of the Wright machine, Captain Baldwin was there teaching Army Officers to operate a new dirigible balloon for which Curtiss had furnished the motor. In speaking of the experiments in aviation being carried on by Curtiss and other members of the Aerial Experiment Association at Hammondsport, Baldwin said warningly to Orville: “I hear them talking.” He went on to caution Orville that the work those men were doing would infringe the Wright patents.
By the following year, Curtiss had formed a commercial company, The Herring-Curtiss Co. to make or exhibit airplanes.
On January 3, 1910, Judge John R. Hazel, of the Federal Circuit Court, at Buffalo, New York, granted a temporary restraining order against The Herring-Curtiss Co. and Glen H. Curtiss to prevent them from infringement of the Wright patents. In handing down his decision, Judge Hazel said:
It appears that the defendant Curtiss had notice of the success of the Wright machine, and that a patent had been issued in 1906. Indeed, no one interfered with the rights of the patentees by constructing machines similar to theirs until in July, 1908, when Curtiss exhibited a flying-machine which he called “The June Bug.” He was immediately notified by the patentees that such machine, with its movable surfaces of the tips, or wings, infringed the patent in suit, and he replied that he did not intend to publicly exhibit the machine for profit, but merely was engaged in exhibiting it for scientific purposes as a member of the Aerial Experiment Association. To this the patentees did not object. Subsequently, however, the machine, with supplementary planes place midway between the upper and lower aeroplanes, was publicly exhibited by the defendant corporation, and used by Curtiss in aerial flights for prizes and emoluments. It further appears that the defendants now threaten to continue such use for gain and profit, and to engage in the manufacture and sale of such infringing machine, thereby becoming an active rival of complainant in the business of constructing flying-machines embodying the claims in suit, but such use of the infringing machine it is the duty of this Court on the papers presented to enjoin.
Then in February, 1910, Judge Learned Hand, in the Federal Circuit Court, at New York, issued an injunction to prevent the French aviator, Louis Paulhan, from making exhibitions in the United States unless he would put up an indemnity to the amount of $25,000. The Court declared that both the Bleriot and Farman planes that the defendant was planning to use were infringements of the Wright patents.
Not until January 13, 1914, did the U. S. Circuit Court of Appeals hand down its decision in the Wright suit against Curtiss. The decision was in favor of the Wright Co.
In his interview in the New York Times, already quoted from, published in the New York Times, February 28, 1914, Captain Thomas S. Baldwin, though a close associate of Curtiss, heartily endorsed the final decision in the Wright vs. Curtiss case. Referring to that decision he told the interviewer.
“It is high time for all the rest of us to step up and admit that not a one of us ever would have got off the ground in flight if the Wrights had not unlocked the secret for us.”
“I want to go on record as saying that the Wrights are fully entitled to the decision they have at last received. . . .
“Mr. Curtiss is a friend of mine today,” said Baldwin, “and I have served in his companies as a director. But it is due to the Wrights as a simple matter of justice to have the story of the actual genesis of flight fully established.”
By that time, Captain Baldwin had abandoned the dirigible balloon for the airplane, and thus he, too, had been an infringer of the Wright patent. But as his public statements indicated, he showed an attitude quite different from that of most other infringers. Glenn Martin was another, like Baldwin, who acknowledged indebtedness to the Wrights.
After the Wrights had won their important suit against Curtiss in the Circuit of Appeals, Curtiss made no secret of the fact that he still hoped to find a possible loophole to get around the Wright patent. Since the decision of the Court enjoined him from using two ailerons operating simultaneously in opposite directions, he thought perhaps he could escape penalty by using just one aileron at a time, while the other remained inoperative. This, however, was covered by Claim 1 of the Wright patent, if the claim were given a liberal interpretation, as the Court had said the Wright Patent was entitled to, on account of the Wrights being the pioneers in the art of flying. But Claim 1 had not been cited in the former suits, and so had not as jet been adjudicated. If Curtiss could just show, or seem to show, in some way that the Wrights were not exactly pioneers, and that some other machine capable of flight antedated the Wright machine, then he would be in a stronger position to defend himself against Claim 1 if it should be cited against him. Anticipating a suit, Curtiss took astounding means to prepare for combating it – as will appear.
But after all the evidence was taken in that case and just before the case was to come to trial, Orville Wright sold his interest in The Wright Co. to New York capitalists. Curtiss then contrived to gain delay after delay by approaching the new owners with proposals of settlement. These negotiations dragged on until the United States entered the First World War, and the Manufacturers Aircraft Association was organized for cross-licensing agreement, The Wright Co. received royalty on all planes manufactured for the Government. Consequently, this last case against Curtiss never came to trial.
The Wrights won their patent suits, too, in the highest courts of both Germany and France. The court in Germany made the comment in its oral decision that their discovery that a rear rudder was a balancing device rather than a steering device should entitle them to a basic patent.
Without going into too much detail about the various patent suits, the important point is that the priority of the Wright patents was sustained by the courts in both the United States and Europe. Every airplane that flies, in any part of the world, to this day, does so by use of devices and discoveries first made by the Wright brothers.
These patent suits were a terrible ordeal for the attorneys and judges concerned, for aviation was so new that many of the technical terms were beyond the knowledge of nearly everyone. It was if lawers and judges had to learn a new language and take a course in the theoretical side of aeronautical engineering as they went along.
In a case against a foreign aviator, Wilbur Wright was called upon in Court to explain the function and operation of a rudder when an aeroplane is making a circle. Wilbur got hold of a piece of string and a fragment of chalk and went to a blackboard, where he made it clear to the judge that when a machine is making a turn the pressure is on the opposite side of an aeroplane rudder from what it is on a ship’s or a dirigible’s rudder when they are making the same turn.
After the judge had issued a temporary restraining order, at the end of the day’s proceedings, Clarence J. Shearn, attorney for the defendant, gloomily remarked: “If it hadn’t been for Wright and that damned piece of string, we would have won.”
One bit of testimony in another case was in regard to the accuracy of observations of men who fly airplanes. To show the inaccuracy of most people’s observation on phenomena having to do with physical laws, Wilbur used for illustration what a man thinks happens when riding a bicycle.
“I have asked dozens of bicycle riders,” said Wilbur, “how they turn a bicycle to the left. I have never found a single person who stated all the facts correctly when first asked. They almost invariably said that, to turn to the left, they turned the handlebar to the left and as a result made a turn to the left. But on further questioning them, some would agree that they first turned the handlebar a little to the right, and then as the machine became inclined to the left, they turned the handlebar to the left and made the circle, inclining inwardly. To a scientific student it is very clear that without the preliminary movement of the handlebar to the right, a movement of the handlebar to the left would cause the bicycle to run out from under the man, who would continue headlong in his original direction. Yet I have found many people who would deny having ever noticed the preliminary movement of the handlebar to the right. I have never found a non-scientific bicycle rider who had particularly noticed it and spoke of it from his own conscious observation and initiative. I found the same condition among aviators with whom I have flown. Some have almost no consciousness of whether it is sliding somewhat to the right or to the left. The ability to notice these things, even in small degrees, is the main quality which distinguishes skilled aviators from novices and born flyers from men who will never be able to handle flying-machines competently.”
Even though the Wrights won all of their patent suits, collecting royalties proved to be something else.
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