The Patent Wars – Part 1, The Wars Begin

by Dr. Richard Stimson

in Patent Wars

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.

Previous post:

Next post: