Wilbur and Orville Wright are renowned for their pioneering work in aviation, but their lesser-known battle through the patent system played a crucial role in shaping the early aircraft industry. This article explores how their patent strategy influenced aviation development and offers insights for today’s entrepreneurs.
The brothers’ legacy combines litigiousness (with its personal risks and rewards) and innovation (with its accolades).
The Brothers’ Invention and Patent Application
The brothers’ invention of three-axis control was a groundbreaking achievement that solved the fundamental problem of controlled, sustained flight. This set their design apart from other early attempts at powered flight and formed the basis of their patent.
Pre-patenting work in 1902 convinced the brothers that they could maneuver an aircraft about its pitch, roll, and yaw axes. In their Eureka moment, they envisioned simultaneous use of wing-warping to influence roll and rudder displacement to effect yaw. They used an elevator to change pitch. Earlier attempts had mixed successes. However, reduction to practice and perfection are not prerequisites to filing a patent application.
Soon after the Wrights demonstrated their aircraft, others involved in similar efforts sought recognition, whether justified or not. The New York Times in 1910 observed that “[it is] a highly significant fact that, until the Wright brothers succeeded, all attempts with heavier-than-air machines were dismal failures, but since they showed that the thing could be done, everybody seems to be able to do it.”
A practice tip emerges: if you have an inventive concept, it’s often better to file a patent application sooner than later. In those days, the first to invent prevailed over the first to file a patent application. Today, the first to file prevails.
The Wrights filed their patent application on March 23, 1903, nine months before their historic first powered flight on December 17, 1903. The wrote it themselves. After the Patent Office initially rejected the application, they hired Henry Toulmin, a patent attorney. Following lengthy examination, the Patent Office granted U.S. patent no. 821,393 (Figure 1, below) on May 22, 1906, more than three years after the initial filing.
Patent Scope and Claims
The patent had broad claims, encompassing any powered flying machine that utilized their three-axis control system, regardless of the specific mechanism used to achieve it.
The scope of a patent is defined by what it claims. Claims are the numbered paragraphs at the patent’s end. The ‘393 patent has 18 claims. Here’s the first:
“In a flying-machine, a normally flat aeroplane [wing] having lateral marginal portions capable of moving to different positions above or below the normal plane of the body of the aeroplane, such movement being about an axis transverse to the line of flight, whereby said lateral marginal portions may be moved to different angles relatively to the normal plane of the body of the aeroplane, so as to present to the atmosphere different angles of incidence and means for so moving said lateral marginal portions, substantially as described.”
If the claim language seems cryptic, the reader can refer to descriptive language elsewhere in the patent and its drawings. If that fails, he can turn to sources outside the patent application, such as dictionaries and other reference works.
By 1903, others had recognized the problem: flying was dangerous if you lacked control. Problem recognition is part of the inventive concept.
Enforcement and Legal Battles
An issued patent gives its holder the right to prevent others from making, using, selling, offering for sale, or importing the claimed subject matter. Such rights can be valuable for a commercially significant product in a competitive market. The goals of patent enforcement include stopping the infringing activity and collecting royalties.
The Wright brothers asserted their patent vigorously. They launched an aggressive enforcement campaign, initiating lawsuits against numerous aircraft manufacturers, including Glenn Curtiss.
Defenses to patent infringement include non-infringement and invalidity for various reasons – such as prior public knowledge, prior use or sale, and prior inventorship. In one case, a German court ruled that the asserted patent was invalidated by prior disclosure in speeches by Wilbur Wright in 1901 and Octave Chanute in 1903. Even today, filing a patent application should precede public disclosure.
Their patent assertion efforts provoked counterthrusts. Glenn Curtiss and the Smithsonian Institution tried to discredit the Wright brothers. In 1914, Curtiss worked secretly with Charles Walcott, the head of the Smithsonian, to modify Samuel Langley’s failed aircraft. They demonstrated that, if modified, it could fly. Walcott restored the Langley machine to its 1903 condition to hide the modification before displaying it. Years later, the Smithsonian acknowledged that the Wrights deserved credit for “the first successful flight with a power-propelled heavier-than-air machine carrying a man.”
To monetize their patent, Orville and Wilbur sold it to the Wright Brothers Company for $100,000 cash, 40% of the company’s stock, and a 10% royalty on all aircraft sold. Litigation sapped their proceeds, time, and energy while diverting their focus from further innovation.
The Wright Brothers Company tried to monopolize U.S. aircraft manufacturing. In 1908, they argued that Curtiss should not infringe their patent and profit from flying or selling aircraft that used ailerons. Curtiss refused to pay license fees, so the Wrights sued.
In that case, the Judge ruled:
“It further appears that the defendants [Curtiss] now threaten to continue using such [infringing] machine for gain and profit and to engage in the manufacture and sale of such infringing machine, thereby becoming an active rival of [the Wrights] in the business of constructing flying machines embodying the claims in the suit, but this Court’s duty on the papers presented is to enjoin such use of the infringing machine.”
In 1914, a U.S. Circuit Court of Appeals upheld the verdict against Curtiss, who avoided penalties by filing appeals and pursuing other legal tactics.
The Wrights went after other domestic aviators and foreign companies. They sued nine times and were sued three times, but the brothers prevailed more often than not.
Impact on the Early Aviation Industry
The patent wars cast a long shadow over the fledgling U.S. aviation industry, stifling innovation and causing many American aviators and manufacturers to move their operations overseas.
The Wrights’ forays into the court system made it difficult for competitors to develop products with any certainty. Risk abounded, and investment was precarious.
Receiving a letter from the brothers’ lawyers had a chilling effect. One result was that would-be competitors often paid sizeable fees to make the problem go away.
By 1917, the Wright Company and the Curtiss Company were the two major patent holders in aviation. They effectively prevented others from building aircraft.
Lawsuits and threats deterred fledgling aircraft manufacturers from taking business risks. The threat of a lawsuit and uncertainty about allegations of patent infringement caused harm and unpredictability to early investors and aircraft manufacturers. However, escalating threats of war in Europe stimulated the need for aircraft.
The patent wars hindered domestic aviation development and had international repercussions. While legal battles abounded in the U.S., European countries made significant advancements in aircraft design and production, leading to their dominance in the field during World War I.
Against this background, the U.S. Government encouraged the aviation industry to form a patent-sharing group. In 1917, the Manufacturers Aircraft Association was established to create a patent pool. This allowed aircraft manufacturers to access critical patents for a reasonable fee, effectively ending the patent deadlock.
All aircraft manufacturers were required to join the Association and share the use of patents. They paid royalties on each airplane made. Some money in the pool went to the Wright-Martin and Curtiss companies until their patents expired. This arrangement was supposed to last until the war ended, but in 1918, the Wright-Curtiss litigation was not renewed. By then, Wilbur had died, and Orville had sold his interest in the Wright Company.
Legacy and Lessons Learned
As the Wright brothers engaged in legal battles, their focus shifted from pushing the boundaries of flight to protecting their intellectual property, at the cost of hampering their own innovative potential.
The brothers’ aggressive patent enforcement was like a double-edged sword – it protected their invention but also created turbulence in an industry they helped create.
The lawsuits harmed how the public perceived the Wright brothers. Were they heroes or patent trolls? Detractors argue that the brothers’ enforcement tactics retarded aircraft development. A balanced appraisal recognizes the resource-sapping and expensive legal battles waged in an industry the brothers spawned. That appraisal also, in fairness, considers the Wrights’ historic first flight and applauds their inventive spirit.
The brothers’ journey through the patent system highlights the delicate balance between protecting intellectual property and fostering innovation. While their aggressive patent enforcement tactics temporarily stunted industry growth, their inventive spirit and legal battles paved the way for modern aviation. Such experiences offer valuable lessons for today’s entrepreneurs navigating the complex world of patents and innovation.
The Wrights’ patent saga offers a cautionary tale about the fine line between protecting innovation and stifling industry growth.
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