Wright Brothers – Patent Wars

Articles relating to the patent wars between the Wright Brothers and the US.

Wright Brothers’ Patent Lawyer

by Dr. Richard Stimson

in Patent Wars

The Wright Brothers failed in their first attempt to secure a patent for their airplane. They decided they had better find a lawyer who was an expert in obtaining patents.

They had heard of such a person that lived in Springfield, Ohio. His name was Harry A. Toulmin and he was referred by two Dayton friends; Wil Ohmer and John Kirby. A century ago the Wrights’ rode the Interurban railway from Dayton to Springfield to engage Mr. Toulmin.

The visit turned out to be one of the better decisions the Wrights’ had ever made. Toulmin tied up the patent so tightly that nobody was able to break it during the life of the patent despite 30 lawsuits of others claiming to be the inventor of the airplane.

It was Toulmin who suggested that the patent should cover the three-axis system of controls used on the 1902 glider, rather than the plane itself. It was a brilliant decision because even today every airplane that is flown uses the Wright’s control system.

The patent (No. 821,393) was granted May 22, 1906, with Toumlin’s signature on the application. It is doubtful that the Wright brothers would have been credited with the invention without the patent.

Toulmin secured four more patents and then took steps to put the original patent into effect in Europe. Toulmin represented the Wrights’ for a total of nine years.

Today, there is a statue of Henry Toulmin across the street from the building where Toulmin had his office.

Reference: Springfield News, October 10, 2008

After Wilbur’s death in 1912, Orville became the president of the American Wright Co. On February 1913, he left with Katharine for Europe to follow-up on Wilbur’s pursuit of their patent litigation.

Their first stop was in England, where they assisted in the establishment of the British Wright Co. Along with the establish of the new company, the British government made a lump-sum payment of 15,000 pounds as settlement of all unauthorized use of the Wright patent in England.

The next stop was in Germany. They arrived just in time to hear that the German Supreme Court uphold “with great regret” the earlier ruling of the German patent office that the Wrights forfeited all rights to their patent because of “prior disclosure.”

They did throw the Wrights a bone by recognizing the fact that they were the inventors of wingwarping and had patent control of the combined use of wingwarping with a vertical rudder.

It was then on to Paris for a week. There, the French High Court announced a ruling that seemed to favor the Wrights, but once again the judges allowed a defense motion to create another panel of experts to review “prior art.”

Wilbur, before his death, maintained that the claim of prior art was “absolutely rot.” “The art was at an absolute standstill in France from 1897 till 1902, when we invented our method of control. The patent was not published till June 1904. It was only after reading it that they began to apply our system.”

It would turn out that the lawyers involved on both sides would manage to drag out the case without resolution until the Wrights’ French patent expired in 1917.

Orville and his sister sailed for home on March 9. Good news awaited them. Judge Hazel on February 27, handed down his decision upholding the Wright patent. Curtiss was enjoined from manufacture, sale and exhibition of airplanes.

Not surprisingly, Curtiss appealed and was again allowed to continue operations.

On January 13, 1914, the U.S. Circuit Court of Appeals affirmed the Wrights “as pioneers in the practical art of flying heavier-than-air machines.” Orville was pleased with this decision and believed it provided total vindication for all of Wilbur’s and his hard work.

Every airplane that flies today does so by use of devices and discoveries first made by the Wright brothers.

Captain Thomas Baldwin, an associate and friend of Curtiss, in an interview published in the New York Times, February 28, 1914, acknowledged the indebtedness. “It is high time for all of us to step up and admit not a one of us ever would have got off the ground in flight if the Wrights had not unlocked the secret for us.”

Then a strange thing happened. Henry Ford, whose company was founded in 1903, the year of the Wrights’ “first flight”, decided to help Curtiss by offering him the services of his attorney, W. Benton Crisp. Crisp had previously helped Ford win his long patent fight with George Seldon who claimed to have a prior patent on a lightweight engine called the “road engine.”

Crisp adroitly exploited a technicality with a new approach for challenging the Wright patent. The strategy was for Curtiss to disconnect the ailerons so that they could only work independently of each other. This approach was covered under the Wright patent, but had never before been cited or included in the earlier suit. The Wright Co. would have to bring suit all over again which they did on November 16, 1914.

(Ford and Orville later became friends and Ford arranged with Orville to move the original Wright homestead and last bicycle shop from Dayton to Ford’s Greenfield Village, Dearborn, Michigan where they were restored.)

Earlier in 1914, Curtiss tried another tactic. He was permitted to take the failed original Langley machine that was in the Smithsonian Institution, Washington, to Hammondsport, New York, to make tests in an attempt to invalidate the Wright claim of pioneers. The machine was reported to have flown but only after modifications from the original. (Archives: The Wright Brothers Roundabout Route to the Smithsonian.)

While this was going on, Orville placed in motion a strategy to sell the Wright Co. Orville had never been happy in his role as president of the company. He didn’t like being in management and made no secret of it. He didn’t even keep an office in the factory building, preferring to use his old office above the bicycle shop where his secretary, Mabel Beck, guarded the door to unwanted intruders.

His strategy was to buy up all the company shares held by members of the board except one of his friends. To pull this off, he took a large risk and borrowed a large amount of money for the first time in his life.

His strategy worked and he sold the company to seven eastern investors on October 15, 1915. By so doing, he walked away from the business, including the patent suit.

The Wright Co. continued to pursue the patent suit, but it was never completely resolved. Curtiss was able to drag out negotiations with repeated proposals for settlement that were never finalized.

World War I brought an end to the fiasco. The U.S. Government stepped in and commanded a truce to resolve the dispute when America entered World War I in 1917. Ford’s lawyer Crisp, still on retainer to Curtiss, developed a successful plan to bring all concerned parties together in a new organization known as the Manufacturers Aircraft Association. The organization is still active today as the Aerospace Industries Association and represents the airplane and space industry

All members of the association were granted use of the patented technology after payment of a blanket fee. Curtiss and Wright-Martin, successor to the Wright Co., each received $2 million under the agreement.

So, the epic patent wars ended with a Wright victory of sorts. But victory is one that brings to mind Pyrrhus of Epirus, king of an ancient country in northwest Greece.

Plutarch reports that after defeating the Romans in the battle of Asculum in 279 B.C. Pyrrhus said, “One more victory like this will be the end of me.” His name lives on in the word for victory at too great a cost.

The Wrights’ battle to defend their patent at home and abroad was having marginal success. The courts tended to support the Wrights in their primacy claim but would withhold their final decision while the defendant’s lawyers managed to buy time by asking for further study. In the meantime their clients were free to pursue business as usual.

The defendants used two strategies. One was to claim “prior disclosure,” claiming disclosures by Chanute and Wilbur Wright. The other strategy was to claim “anticipation” by early pioneers such as Louis-Pierre Mouillard.

As an example of the latter, the French claimed that Mouillard was the true father of wingwarping. The truth of the matter is that Mouillard’s plan was to use a form of wing twisting to slow the wing on one side relative to the other for the purpose of steering in a flat turn. He had no notion of the Wright system of a coordinated turn using the tail and twisting of wings. Mouillard’s glider didn’t even have a tail.

The French Tribunal issued a statement that seemed to support the Wrights but then created a loophole that set up a panel of three aeronautical authorities that were to determine whether the Wright patent had been “anticipated” by others.

In Germany, the German patent office declared that the Wright patent was invalid because of “prior disclosure.”

They cited Octave Chanute’s speech in Paris in April 1903 to the Aero-Club de France in which he talked about the Wright glider experiments of 1900-02, and Wilbur’s speech to the Western Society of Engineers after the Wrights’ glider experiments of 1901.

The German arguments were without merit. Chanute didn’t understand the intricacies of the Wrights’ flight control system and couldn’t therefore have revealed them.

Chanute was involved in an interview that didn’t help the Wrights’ cause. He was quoted in a publication, Aeronautics, the year before that he thought “the Wrights have made a blunder by bringing suit at this time.” He added that he didn’t think “that the courts will hold that the principle underlying warping tips can be patented.” This later statement is another indication that he didn’t understand the Wright control system.

This dispute marred a long friendship between the Wrights and Chanute. (Archives: Chanute – Friendship Flies into Stall)

As to Wilbur’s 1901 speech, the Wrights at the time of Wilbur’s speech had not perfected their control system. The most significant aspect of this speech was Wilbur’s suggestion that Lilienthal’s lift and drag tables were wrong (which they were).

The Wrights appealed the German decision, but to no avail.

It was now apparent that the patent suits were terribly time consuming for Orville and Wilbur. It was especially tough on Wilbur who was the brother actively participating in the court battles at home and abroad.

He was an effective witness, using his knowledge and photographic memory to perform a masterful job of explaining the technical complexities of their patent. His testimony resembled a college seminar on the principles of aeronautical engineering. His students were the judges and lawyers.

However, the trials were not fun. He detested the legal conflict with its ritualistic absurdities and delays. The time demands and travel were becoming an increasing burden.

A number of nuisance suits against the Wrights didn’t help. The publicity generated by the patent wars encouraged a number of these suits against the brothers that were dismissed, but still required time and effort.

One such suit was from an Erastus Winkley who held a patent for an automatic control device for sewing machines. He asserted that the Wrights had stolen his idea for use on their airplane.

Wilbur sarcastically commented, “It is rather amusing, after been called fools and fakers for six or eight years, to find now that people knew exactly how to fly all the time.”

By the end of 1911 and 1912, two tragic events occurred. First, because the patent war had diverted the Wrights attention away from their airplane business, they were slowly but surely losing the technology lead to their competitors that was once as much as five-years.

Second, the strain on Wilbur began to have adverse effects on his health. He had looked tired for some time. Then, while in Boston in late April 1912, he became very ill. Wilbur attributed his sickness to some fish that he had eaten at a Boston hotel. On his return he felt better but than shortly after his return, he developed a fever that persisted for several days and his overall condition worsened.

On May 8, Dr. Daniel B. Conklin diagnosed typhoid fever. Orville had typhoid fever in 1896 from contaminated well water in their bicycle shop. He recovered, but the family remembers how bad that bout had been. Eighty to ninety percent of people die from the disease because there was no cure at that time.

Wilbur lapsed into unconsciousness and died quietly at 3:15 in the morning on May 30, despite the best that Dr. Conklin and two other doctors called in could do. His father, three brothers and sister were at his bedside. He was 45 years old.

Twenty-five thousand mourners filed past his coffin before the simple funeral service began in the First Presbyterian Church in Dayton on June 1. There was no music in the 20-minute service. The pastor read scriptural messages and an overview of Wilbur’s career written by Reuchlin (older brother). A friend of Wilbur from Indiana read Martin Luther’s hymn, “A Mighty Fortress is Our Lord.”

Interment was in a private burial at Woodland Cemetery in Dayton. Church Bells tolled at 3:30 in the afternoon while all activity in the city came to halt for ninety minutes.

Bishop Wright eloquently paid tribute to his son: “A short life, full of consequences. An unfailing intellect, imperturbable temper, great self reliance and a great modesty, seeing the right clearly, pursuing it steadfastly, he lived and died.”

Orville and Katharine felt the lost of Wilbur the most because they had been “buddies” since childhood. Brother and sister became even closer after Wilbur’s death and resolved to carry on Wilbur’s fight in the patent wars. This was a fight that had absorbed Wilbur for the last two years of his life and they believed it had contributed to his death.

The Wright Brothers’ time and energy was consumed for a prolonged period of seven years in defending their patent. At stake was their claim to have invented and built the world’s first power-driven, heavier-than-air machine in which man made free, controlled, and sustained flight.

Their fight would become an obsession that would have profound adverse consequences on the future of their airplane business and the health of Wilbur.

The basic Wright patent in the United States (No. 821,393) was applied for in 1903 and granted in 1906. The patent covered the control system of the 1902 glider involving the simultaneous use of wingwarping and rudder to perform a controlled turn and the ability to maintain roll stability.

The Wrights engaged Springfield, Ohio attorney Harry Toulmin to represent them which he did for nine years. Orville and Wilbur would travel to Springfield by the interurban streetcar from Dayton to Springfield to meet with Toulmin. Toulmin had come to Springfield from Washington D.C. in 1886 because it was a center of innovation and invention and required legal representation for patent proceedings.

They were the first in the long history of man to discover the secret of manned flight after much hard work and creativity. They rightly deserve the credit as well as the financial reward for their momentous contribution. Not everyone agreed.

They had learned from their father, a Bishop, that there were many dishonest scoundrels in the world. The Wrights were impeccably honest themselves, and they had no patience for dishonest people.

Edmund Burke once wrote: “There is no safety for honest men but by believing all possible evil of evil men.” The Wrights would experience the truth of that statement.

They were aware that others in the world would try to steal their accomplishments and their patents would be insufficient protection. They would soon find that the situation was far worse than they believed. Before the fight was over, the brothers were actively involved in a dozen different suits in the U.S. and nearly two dozen in Europe.

From the very beginning of their experiments they knew it would be necessary to protect their secrets from scoundrels, that’s why they strove for secrecy. They selected Kitty Hawk for its isolation. After they had successfully developed a practical airplane in Dayton (1905), they stopped flying to protect their secrets and didn’t fly again until they had firm contracts for the sale of their airplane in May 1908.

A letter to Glen Curtiss from Orville in July 1908 initiated the patent struggle. Glen Curtiss had just won a trophy worth $2,500 given by the Aero Club of America for a flight over a mile long. Curtiss flew an airplane named the June Bug sponsored by the Aerial Experimental Association (AEA), a private organization formed by Alexander Graham Bell in 1907. (Archives: Alexander Graham Bell is No Friend of the Wright Brothers)

Orville warned Curtiss on July 20, “We do not intend to give permission to use the patented features of our machines for exhibitions or in a commercial way.” He continued, “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 is not intending to enter the exhibition business and that the matter of patents has been referred to the AEA.

Curtiss was not too concerned about the Wrights because Bell had assured members of the AEA that the ailerons used on the June Bug, instead of wingwarping, would circumvent the Wright’s patent. It was Bell who first suggested the use of ailerons.

Bell’s assumptions were wrong, the Wrights’ patent recognized that lateral control could be obtained by surfaces such as ailerons. Bell may even have gotten his idea from the Wright patent.

The Wrights were acquainted with Curtiss. They first met him in person in September, 1906 while Curtiss was in Dayton accompanying Captain Thomas S. Baldwin, who was giving exhibition flights at the Montgomery County Fairgrounds with a dirigible balloon on which he was using a motor built by Curtiss.

Curtiss and Baldwin spent several days with the Wrights during which time the Wrights showed them photographs of their flights and answered a number of questions. Curtiss was excited with the disclosure, remarking that it was the first time he had been able to believe anyone had actually had flown with a flying machine. Baldwin would later become a member of the AEA with Curtiss.

In January 1908, another member of the AEA requested and received additional valuable information from the Wrights. Lt. T. Selfridge, assigned to the AEA by the army, wrote a letter to the Wrights seeking advice on the construction and performance of their machines.

Despite his assurances to the contrary, Curtiss continued unabated his aeronautical activities. In June 1909, Curtiss built a new machine, the “Golden Flyer,” an obvious play on the Wright Flyer. He sold it to The Aeronautical Society of New York for $5,000. He also departed the AEA and formed a new company in partnership with another aviation pioneer, Augustus Herring.

Herring, too, had first-hand knowledge about the Wrights’ activities. He had been present at Kitty Hawk during the some of the Wright’s experiments with the 1902 Glider and later claimed that he had insight into the Wrights’ techniques. (Archives: Augustus Herring, No Friend of the Wrights.)

It soon became obvious to the Wrights that Curtiss had no intention to negotiate with them for the use of their patents. Wilbur, therefore, initiated two actions in August 1909. First, he filed a bill of complaint enjoining Curtiss and the Herring-Curtiss Co. from the manufacture, sale or exhibition of airplanes. Second, he filed a suit to prohibit the Aeronautical Society of New York from operating the Golden Flier because it utilized features that were an infringement of their patents.

These actions began what is commonly referred to as the patent wars.

Judge John R. Hazel of the Federal Court in Buffalo was assigned the case. Until such time as Hazel issued a restraining order, The Herring-Curtiss Co., was free to operate and Curtiss was free to continue flying.

In November 1909, the American Wright Co. was formed. Wilbur was president and Orville was a vice-president. The company became the new owner of the Wright patents and assumed the responsibility of managing the patents including legal expenses. The Wrights were hopeful that with the formation of the new company they could now be free to pursue their first love, research. Unfortunately, this would never come to pass.

Initially, the court actions went smoothly for the Wrights. On January 3, 1910, Judge Hazel granted an injunction against Herring-Curtiss that the Wrights had sought.

During the hearing, the judge gave no credence to Herring’s lawyer ridiculous claim that the Herring-Curtiss fame rested on their skill as “aeroplane chauffeurs.” Curtiss filed an appeal, but the company, already in poor financial shape, was forced into bankruptcy.

For the first six months of 1910 the Wrights enjoyed an effective monopoly in the airplane business in America.

It wouldn’t last long.

The Wrights offered to drop their suit against Curtiss if he would take out a license and make a settlement for past infringement. Curtiss decided he was better off with his strategy of delaying tactics.

Curtiss personally came out of the bankruptcy in better shape than before. He rid himself of Herring and purchased back the factory from the Herring-Curtiss trustees, forming the Curtiss Aeroplane and Motor Co. Not only that, his appeal of the injunction was granted in June so he was back in business producing airplanes.

During this time period, the Wrights also sued foreign aviators who were participating in exhibition flying in America. Only one came to trial. The Wrights won and were awarded $1700.