Wright brothers patent war

The Wright brothers patent war centers on the patent they received for their method of an airplane's flight control. The Wright brothers were two Americans who are widely credited with inventing and building the world's first flyable airplane and making the first controlled, powered and sustained heavier-than-air human flight on December 17, 1903.[1][2][3]

Oblique view of the airplane - Wright 1906 Patent

In 1906, the Wrights received a patent for their method of flight control which they fiercely defended for years afterward, suing foreign and domestic aviators and companies, especially another U.S. aviation pioneer, Glenn Curtiss, in an attempt to collect licensing fees.[4][5]

Even after Wilbur Wright had died, and Orville Wright had retired in 1916 (selling the rights to their patent to a successor company, the Wright-Martin Corp.), the patent war continued, and even expanded, as other manufacturers launched lawsuits of their own—creating a growing crisis in the U.S. aviation industry.[4][5]

The patent war stalled development of the U.S. aviation industry.[4][6][7][5][8] (This claim has been disputed in research.[9]) As a consequence, airplane development in the United States fell so far behind Europe[4] that in World War I American pilots were forced to fly European combat aircraft, instead.[10][11][12][13] After the war began, the U.S. Government pressured the aviation industry to form an organization to share patents.[4][14]

Patent

During their experiments of 1902 the Wrights succeeded in controlling their glider in all three axes of flight: pitch, roll and yaw. Their breakthrough discovery was the simultaneous use of roll control (with wing-warping) and yaw control (with a rear rudder). A forward elevator controlled pitch. In March 1903 they applied for a patent on their method of control. The application, which they wrote themselves, was rejected. In early 1904, they hired Ohio patent attorney Henry Toulmin, and on May 22, 1906, they were granted U.S. Patent 821,393,[15] for a "Flying Machine".

The patent's importance lies in its claim of a new and useful method of controlling a flying machine, powered or not. The technique of wing-warping is described, but the patent explicitly states that other methods instead of wing-warping could be used for adjusting the outer portions of a machine's wings to different angles on the right and left sides to achieve lateral roll control.[4][16] The concept of lateral control was basic to nearly all airplane designs. Without it they generally could not be easily or safely controlled in flight.[17] (However, thousands of airplanes have been built without lateral (roll) controls from that time forward, including popular versions of the Mignet Pou-du-Ciel and the Eipper Quicksilver, and many other small airplanes relying on various "weight-shift" designs[18] and/or lateral stability, particularly resulting from wing dihedral.)[19]

Letters that Wilbur Wright wrote to Octave Chanute in January 1910 offer a glimpse into the Wrights' feeling about their proprietary work: "It is not disputed that every person who is using this system today owes it to us and to us alone. The French aviators freely admit it."[20] In another letter Wilbur said: "It is our view that morally the world owes its almost universal use of our system of lateral control entirely to us. It is also our opinion that legally it owes it to us."[21]

The broad protection intended by this patent succeeded when the Wrights won patent infringement lawsuits against Glenn Curtiss and other early aviators who devised ailerons to emulate lateral control described in the patent and demonstrated by the Wrights in their 1908 public flights. U.S. courts decided that ailerons were also covered by the patent.[4][17]

Patent war
Wilbur Wright Orville Wright Glenn Curtiss

In 1908, the Wrights warned Glenn Curtiss not to infringe their patent by profiting from flying or selling aircraft that used ailerons. Curtiss refused to pay license fees to the Wrights and sold an airplane to the Aeronautic Society of New York in 1909. The Wrights filed a lawsuit, beginning a years-long legal conflict.

They also sued foreign aviators who flew at U.S. exhibitions, including the leading French aviator Louis Paulhan.[22] The Curtiss people derisively suggested that if someone jumped in the air and waved his arms, the Wrights would sue.

The brothers' licensed European companies, which owned foreign patents the Wrights had received, sued manufacturers in their countries. The European lawsuits were only partly successful. Despite a pro-Wright ruling in France, legal maneuvering dragged on until the patent expired in 1917. A German court ruled the patent not valid due to prior disclosure in speeches by Wilbur Wright in 1901 and Octave Chanute in 1903.

In the U.S. the Wrights made an agreement with the Aero Club of America to license airshows which the Club approved, freeing participating pilots from a legal threat. Promoters of approved shows paid fees to the Wrights.[23]

The Wright brothers won their initial case against Curtiss in February 1913, but the decision was appealed.[24] The brothers wrote to Samuel F Cody in the UK, making a claim that he had infringed their patents but Cody stated that he had used wing-warping on his man-carrying kites before their flights.[25]

The Wrights' preoccupation with the legal issue hindered their development of new aircraft designs, and by 1910 Wright aircraft were inferior to those made by other firms in Europe.[26] Indeed, aviation development in the U.S. was suppressed to such an extent that, when the country entered World War I, no acceptable American-designed aircraft were available,[10][12] and U.S. forces were compelled to use French airplanes.[13] (This claim has been disputed by researchers Katznelson and Howells, who assert that before World War I "aircraft manufacturers faced no patent barriers."[9])

In January 1914, a U.S. Circuit Court of Appeals upheld the verdict in favor of the Wrights against the Curtiss company, which continued to avoid penalties through legal tactics.

Beginning in 2011, Russell Klingaman—a prominent Wisconsin aviation/patent attorney, aviation law journalist, and instructor in Aviation Law at Marquette University Law School[27][28][29]—researched, prepared and delivered a series of lectures, at major aviation events and lawyers' organizations, analyzing and decrying the events and outcomes of the Wright-Curtiss lawsuit, citing numerous examples of error or misconduct by various parties to the suit, including attorneys and the judge. Klingaman found that the judge in the case allowed the Wrights' attorney to make his case in a private ("ex-parte") hearing with the judge, without the opposing side present, and discovered other misconduct which he believes led to a legally inappropriate outcome.[30][31][32]

Post-Wright patent battles

Some time after Wilbur Wright's death, Orville Wright retired from their company in 1916, and sold his rights in their critical patent, for over $1,000,000, to the Wright-Martin Corporation—which had merged his company with that of fellow aircraft manufacturing pioneer Glenn L. Martin. Anxious to recoup their investment in the Wright patent, the Wright-Martin firm continued the pursuit of patent-infringement battles, and royalty demands, in battles with other planemakers.[4]

At the same time (and in response, some suggest) Glenn Curtiss and his company did the same with their numerous, and arguably important, aviation patents—driving up the cost of American aircraft.[4]

Lawsuits, and lawsuit threats, frightened many would-be aircraft manufacturers out of the business—just as the growing war in Europe stimulated U.S. military demand for aircraft, in anticipation of eventual U.S. involvement in the war. The U.S. Army and Navy were finding it difficult to get aircraft manufacturers to produce enough to meet the military's demand.[4]

In December 1916, Wright-Martin began demanding that other aircraft manufacturers pay a royalty of five percent on each aircraft sold—and meet an annual minimum royalty payment of $10,000 per manufacturer. They demanded that royalty on all aircraft, regardless of whether they achieved differential lifting by the crude, obsolete wing-warping technique of the Wrights, or by the far more popular ailerons used by Curtiss.[4]

Patent pool solution

In 1917, the two major patent holders, the Wright Company and the Curtiss Company, had effectively blocked the building of new airplanes, which were desperately needed as the United States was entering World War I. The U.S. government, as a result of a recommendation from the newly established National Advisory Committee for Aeronautics, pressured the industry to form a cross-licensing organization (in other terms a Patent pool), the Manufacturer's Aircraft Association.[4][33][34][35][36]

All aircraft manufacturers were required to join the association, and each member was required to pay a comparatively small blanket fee (for the use of aviation patents) for each airplane manufactured;[4][33] of that the major part would go to the Wright-Martin and Curtiss companies, until their respective patents expired.[17][4][37] This arrangement was designed to last only for the duration of the war, but in 1918 the litigation was never renewed. By this time, Wilbur had died (in May 1912) and Orville had sold his interest in the Wright Company to a group of New York financiers (in October 1915) and retired from the business[14] . The "patent war" had come to an end.

Aftermath

The lawsuits damaged the public image of the Wright brothers, who previously had been generally regarded as heroes.[38] Critics said the brothers' actions may have retarded the development of aviation,[26][5][39] and compared their actions unfavorably to European inventors, who worked more openly.[5]

The Manufacturers Aircraft Association was an early example of a government-enforced patent pool. It has been used as an example in recent cases, such as dealing with HIV antiretroviral drug patents to give access to otherwise expensive treatments in Africa.[40][41]

The Curtiss and Wright organisations merged in 1929 to form the Curtiss-Wright Corporation, which exists to this day.[14]

Prior art
M.P.W. Boulton, the British inventor of ailerons in 1868
14-bis in November 1906, with its ailerons
Blériot VIII with wingtip ailerons in September 1908

There are conflicting claims over who first invented the aileron as a method for lateral flight control. In 1868, before the advent of powered, heavier-than-air aircraft — and within eleven years distant in time from the birth of all three of the involved parties in the American lawsuit — English inventor Matthew Piers Watt Boulton first patented ailerons.[42][43][44] Boulton's patent, No. 392, awarded in 1868 some 40 years before ailerons were 'reinvented', became forgotten until the aileron was in general use.[45] Aviation historian Charles Gibbs-Smith wrote in 1956 that if Boulton's ailerons had been revealed at the time of the Wright Brothers' patent filings, the brothers might not have been able to claim priority of invention for lateral control of flying machines.[46] U.S. District Judge John R. Hazel, who heard the Wright lawsuit against Curtiss, found to the contrary, ruling in 1913 that Boulton's "assertions and suggestions were altogether too conjectural to teach others how to reduce them to practice, and therefore his patent is not anticipatory."[47]

American John J. Montgomery invented and experimented with controllable spring-loaded trailing edge "flaps" on his second glider (1885) for roll control. Roll control was later expanded on his third glider (1886) to rotation of the entire wing as a wingeron.[48] Later, Montgomery independently devised a system for wing warping, using model gliders first and then man-carrying machines with wing warping as early as 1903 through 1905 such as those used on The Santa Clara glider (1905). Montgomery patented this system of wing warping at precisely the same time as the Wrights,[49] and was routinely requested during the middle of the Wright Brothers patent war to make the Montgomery patent available more broadly to other aviators for the specific purpose of avoiding the Wright Brothers' patent.[48]

New Zealander Richard Pearse may have made a powered flight in a monoplane that included small ailerons as early as 1902, but his claims are controversial (and sometimes inconsistent), and, even by his own reports, his aircraft were not well controlled.

Robert Esnault-Pelterie, a Frenchman, built a Wright-style glider in 1904 that used ailerons in lieu of wing-warping. Although Boulton had described and patented ailerons in 1868, no one had actually built them until Esnault-Pelterie's glider, almost 40 years later.[50]

The Santos-Dumont 14-bis canard biplane was modified to add ailerons in late 1906, though it was never fully controllable in flight, likely due to its unconventional surfaces arrangement. Henri Farman's single-acting ailerons on the Farman III were the first to resemble ailerons on modern aircraft, and have a reasonable claim as the ancestor of the modern aileron.[43] The Blériot VIII, the first aircraft to ever use what became the modern joystick and rudder "bar"-based aircraft flight control system, used wingtip ailerons for its roll control in its flights in France in 1908.[51]

In 1908, U.S. inventor, businessman and engine builder Glenn Curtiss flew an aileron-controlled aircraft. Curtiss was a member of the Aerial Experiment Association, headed by Alexander Graham Bell. The Association developed ailerons for their June Bug aircraft, in which Curtiss made the first officially recognized kilometer-plus flight in the U.S. In 1911, the AEA's version of ailerons received a patent.[43]

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See also

References
  1. "The Wright Brothers & The Invention of the Aerial Age". National Air and Space Museum. Retrieved 2011-02-12.
  2. Johnson, Mary Ann (September 28, 2001). "Following the Footsteps of the Wright Brothers: Their Sites and Stories Symposium Papers". Wright State University. Retrieved 2011-02-12.
  3. "Flying through the ages". BBC. 19 March 1999. Retrieved 2011-02-12.
  4. Roland, Alex (foreword by Jimmy Doolittle), Chapter 2: "War Business: A Laboratory and Licensing; Committees and Engines, 1915–1918", in SP-4103: Model Research - Volume 1, National Aeronautics and Space Administration (NASA), 1983, retrieved December 4, 2017
  5. Nocera, Joel (business columnist), Opinion essay: "Greed and the Wright Brothers," April 19, 2014, New York Times (citing Lawrence Goldstone’s new book, Birdmen), retrieved November 12, 2018)
  6. Boyne, Walter J., aviation historian, (former director/curator, National Air and Space Museum, Smithsonian Institution, "The Wright Brothers: The Other Side of the Coin", in Flight Journal magazine, as republished on Wings Over Kansas, April 20, 2008, retrieved December 3, 2017
  7. Trainor, Sean, "The Wright Brothers: Pioneers of Patent Trolling," December 17, 2015, TIME Magazine, retrieved December 3, 2017
  8. Nocera, Joe, op-ed: "Greed and the Wright Brothers,", April 18, 2014, New York Times, retrieved December 3, 2017, quoting Lawrence Goldstone's book Birdmen.
  9. Katznelson, Ron; Howells, John. "The myth of the early aviation patent hold-up—how a US government monopsony commandeered pioneer airplane patents".Industrial and Corporate Change, Volume 24, Number 1, pp. 1–64 (PDF) Retrieved Jan. 24, 2016
  10. Rumerman, Judy, "The U.S. Aircraft Industry During World War I," 2003, U.S. Centennial of Flight Commission, as archived by the American Aviation Historical Society, retrieved December 3, 2017
  11. "Evolution of the Department of the Air Force," May 04, 2011, Air Force Historical Support Division, U.S. Air Force, retrieved December 4, 2017, quote:"In the end the only American achievement in the field of aircraft production [in World War I] was the Liberty engine. Of the 740 U. S. aircraft at the front in France at the time of the Armistice on November 11, 1918, almost all were European-made."
  12. Gropman, Alan, "Aviation at the Start of the First World War," 2003, U.S. Centennial of Flight Commission, as archived by the American Aviation Historical Society, retrieved December 3, 2017
  13. Feltus, Pamela, "Air Power: United States Participation in World War I," 2003, U.S. Centennial of Flight Commission, as archived by the American Aviation Historical Society, retrieved December 3, 2017
  14. "How The Wright Brothers Blew It," Nov 19, 2003, Forbes, retrieved December 3, 2017
  15. O & W Wright (March 29, 1903), US patent 821,393 Flying-machine, United States Patent Office, retrieved April 21, 2014
  16. Flying Machine U.S. Patent Office via Google Patents. Retrieved Dec. 3, 2017
  17. "Glenn Curtiss and the Wright Patent Battles", U.S. Centennial of Flight, Centennial of Flight Commission, 2003, retrieved April 21, 2014
  18. "Training Guide for Weight-Shift Ultralights, Experimental Aircraft Association, retrieved December 3, 2017
  19. Berger, Alain-Yves and Norman Burr, Ultralight and Microlight Aircraft of the World: Bk. 1, 1983, Haynes Manuals, Inc.
  20. Wilbur Wright (January 29, 1910). "Wilbur Wright to Octave Chanute, Dayton, January 29, 1910". Retrieved 2011-02-12. It is not disputed that every person who is using this system today owes it to us and to us alone. The French aviators freely admit it
  21. Wilbur Wright (January 20, 1910). "Wilbur Wright to Octave Chanute, Dayton, January 20, 1910". Retrieved 2011-02-12. It is our view that morally the world owes its almost universal use of our system of lateral control entirely to us. It is also our opinion that legally it owes it to us
  22. http://www.wondersandmarvels.com/2010/05/were-the-wrights-wrong.html
  23. W.J. Jackman, Thomas H. Russell, Octave Chanute (1912). "Chapter 23: AMATEURS MAY USE WRIGHT PATENTS". Flying Machines: Construction and Operation (Electronic Text Center, University of Virginia Library ed.). Chicago: Charles C. Thompson Co. pp. 211–212. Retrieved January 28, 2016.CS1 maint: uses authors parameter (link)
  24. The Wright Company vs. The Herring-Curtiss Company and Glenn H. Curtiss United States Circuit Court of Appeals, Second Circuit
  25. G. A. Broomfield (16 May 1958), "S F Cody - A Personal Reminiscence", Flight: 691
  26. Boyne, Walter J. "The Wright Brothers: The Other Side of the Coin". wingsoverkansas.com. Retrieved 2009-03-07.
  27. "Aviation Lecture Series: Wrights vs. Curtis - The Patent Wars," 2016, WACO Air Museum, retrieved December 4, 2017
  28. Klingaman bio note in Midwest Flyer Magazine June–July 2016, as archived at issuu.com, retrieved December 4, 2017
  29. "Russell Klingaman," Alumni, University of Wisconsin, retrieved December 4, 2017
  30. Klingaman, Russell, "The Aileron Patent Wars: How Attorney Misconduct and Bad Business Decisions Ruined Fortunes and Cost Lives with a Negative Impact on Allied Power in the First World War," EAA AirVenture Oshkosh, Oshkosh, Wisconsin, July 2014.
  31. "Wrights v Curtiss Patent Wars.mht" itenerary, for AirVenture, Experimental Aircraft Association
  32. "Russell Klingaman: Presentations", HinshawLaw.com
  33. "Patent thickets and the Wright Brothers". ipbiz.blogspot.com. 2006-07-01. Retrieved 2009-03-07. In 1917, as a result of a recommendation of a committee formed by the Assistant Secretary of the Navy (The Honorable Franklin D. Roosevelt), an aircraft patent pool was privately formed encompassing almost all aircraft manufacturers in the United States. The creation of the Manufacturer's Aircraft Association was crucial to the U.S. government because the two major patent holders, the Wright Company and the Curtiss Company, had effectively blocked the building of any new airplanes, which were desperately needed as the United States was entering World War I.
  34. "The Wright Brothers, Patents, and Technological Innovation". buckeyeinstitute.org. Retrieved 2009-03-07. This unusual arrangement could have been interpreted as a violation of antitrust law, but fortunately it was not. It served a clear economic purpose: preventing the holder of a single patent on a critical component from holding up creation of an entire aircraft. Practically, the pool had no effect on either market structure or technological advances. Speed, safety, and reliability of US made airplanes improved steadily over the years the pool existed (up to 1975). Over that time several firms held large shares of the commercial aircraft market: Douglas, Boeing, Lockheed, Convair, and Martin, but no one of them dominated it for very long.
  35. "THE CROSS-LICENSING AGREEMENT". history.nasa.gov. Retrieved 2009-03-07.
  36. "ch2". history.nasa.gov. Retrieved 2020-07-17.
  37. "End Patent Wars of Aircraft Makers". The New York Times. 1917-08-07. Retrieved 2009-03-07. New Organization Is Formed, Under War Pressure, to Interchange Patents. BIG ROYALTIES TO BE PAID: Wright and Curtiss Interests Each to Receive Ultimately $2,000,000 – Increased Production Predicted. Payment of Royalties.
  38. McCullough, David G. The Wright Brothers pp 227-240, 251, Simon and Schuster, 2015. New York Times, June 11, 1909. New York Evening Telegram, September 29, 1909
  39. "Wright Brothers Aeroplane Company: A Virtual Museum of Pioneer Aviation". publichistory.org. 2004-01-13. Retrieved 2009-03-07. basically, after 1903, after the Kitty Hawk flight, the Wright brothers never again made any real, significant scientific contribution to the field of aeronautics(...)some “scholars” have suggested that the Wrights’ insistence in enforcing the patents may have retarded the development of aviation(...)
  40. "Patent Pools, Access to HIV treatments in Africa". essentialdrugs.org. 2002-03-17. Retrieved 2009-03-07. Dr. Kaplan also explained that in the past the government has effectively used a patent pool to give a group compulsory license on a large number of patents, using in particular the 1917 example involving aircraft patents, a pool created at the advice of then Assistant Secretary of the Navy FDR, to overcome the blocking patents held by the Wright Company and the Curtiss Company. It would be interesting to think about an HIV patent pool being created in South Africa, for example, to permit access into the market for products that treat HIV, or to create a US R&D patent pool that all recipients of US NIH funds could be required to join. Here are some sections from that White Paper
  41. "Non-Voluntary Patent Pool: The Key to Affordable Antiretrovirals?". thebody.com. 2002-07-08. Retrieved 2009-03-07. In my view, such a move would have a significant negative effect on the stock market and the drive for innovation that has produced so many antiretroviral drugs so quickly. However, the U.S. government clearly needs to exert more leadership and contribute considerably more funds to the worldwide AIDS struggle. So, in the meantime, a debate about non-voluntary patent pools and other approaches is called for.
  42. F. Alexander Magoun & Eric Hodgins. A History of Aircraft, Whittlesey House, 1931, p.308.
  43. Origins of Control Surfaces, Aerospaceweb
  44. Charles Harvard Gibbs-Smith. Aviation: An Historical Survey From Its Origins To The End Of The Second World War, Science Museum, 2000, p.54, ISBN 1-900747-52-9, ISBN 978-1-900747-52-3.
  45. M. P. W. Boulton and the Aileron, Aerospaceweb
  46. Gibbs-Smith, C.H. (11 May 1956). "Correspondence: The First Aileron". Flight. FlightGlobal.com: 598.
  47. Wrights' Court Decision in Full at www.gustave-whitehead.com. Retrieved Jan. 24, 2016
  48. Harwood, CS and Fogel, GB "Quest for Flight: John J. Montgomery and the Dawn of Aviation in the West," University of Oklahoma Press, 2012.
  49. U.S. Patent #831,173
  50. Ransom, Sylvia & Jeff, James. World Power, Bibb County School District, Georgia. April, 2002.
  51. Crouch, Tom (1982). Blériot XI: The Story of a Classic Aircraft. Smithsonian Institution Press. p. 22.
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