The Wright Brothers Patent War

The Wright brothers patent war centers on the patent they received for their method of airplane 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.

In 1906, the Wrights received a U.S. patent for their method of flight control. In 1909 they sold the patent to the newly formed Wright Company in return for $100,000 in cash, 40% of the company's stock, and a 10% royalty on all aircraft sold. Investors who injected $1,000,000 into the company were financial barons like Cornelius Vanderbilt, Theodore P. Shonts, Allan A. Ryan, and Morton F. Plant. It was this company that waged the patent war, initially in an attempt to secure a monopoly on U.S. aircraft manufacturing. Unable to do so, they adjusted their legal strategy, suing foreign and domestic aviators and companies, especially another U.S. aviation pioneer, Glenn Curtiss, in an attempt to collect licensing fees.

In 1910 they won their initial lawsuit against Curtiss, when federal judge John Hazel ruled:

Of the nine suits brought by them and three against them, the Wright brothers eventually won every case in U.S. courts.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, 2017Nocera, 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)
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.

Many historians believe the patent war stalled development of the U.S. aviation industry, 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, 2017Trainor, Sean
"The Wright Brothers: Pioneers of Patent Trolling,"
December 17, 2015, ''TIME Magazine,'' retrieved December 3, 2017Nocera, Joe, op-ed
"Greed and the Wright Brothers,"
April 18, 2014, ''New York Times,'' retrieved December 3, 2017, quoting Lawrence Goldstone's book ''Birdmen.'' but other dispute this claim.''Industrial and Corporate Change'', Volume 24, Number 1, pp. 1–64 (PDF) Retrieved Jan. 24, 2016 Perhaps as a consequence, airplane development in the United States fell so far behind Europe that in World War I American pilots were forced to fly European combat aircraft, instead.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"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 n World War Iwas 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.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, 2017Feltus, 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 After the war began, the U.S. Government pressured the aviation industry to form an organization to share patents."How The Wright Brothers Blew It,"
Nov 19, 2003, ''Forbes,'' retrieved December 3, 2017

Patent

During their experiments in 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 , 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 including ailerons, which would eventually become the most common method, 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. The concept of lateral control became essential to successful flight and nearly all airplane designs,
with the exception of some types of ultralight aircraft."Training Guide for Weight-Shift Ultralights
Experimental Aircraft Association, retrieved December 3, 2017Berger, Alain-Yves and Norman Burr, ''Ultralight and Microlight Aircraft of the World: Bk. 1,'' 1983, Haynes Manuals, Inc.

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." 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."

The broad protection intended by this patent succeeded when the Wrights won patent infringement lawsuits against Glenn Curtiss and other early aviators who used 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.

Patent war

Soon after the Wright brothers demonstrated their airplane, numerous others involved in similar efforts at the time sought to gain credit for their achievements, whether justified or not. As noted in the New York Times in 1910, "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." This competition quickly devolved into a patent war including 12 major lawsuits, extensive media coverage and a secret effort by Glenn Curtiss and the Smithsonian Institution to discredit the Wright brothers.

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. 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.

The Wright brothers won their initial case against Curtiss in February 1913, but the decision was appealed.
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.

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.
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, and U.S. forces were compelled to use French airplanes.

This claim has been disputed by researchers Katznelson and Howells, who assert that before World War I "aircraft manufacturers faced no patent barriers." Contemporary and respected observers also supported the Wright brothers. In April 1910 the Christian Science Monitor wrote, "The insistence of Professor Bell upon his rights did not retard the growth in the use of the telephone. Thomas Edison's numerous suits for protection of his inventions have not kept any of them out of the market".

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.

In light of these setbacks and to discredit the Wright brothers, Glenn Curtiss in 1914 helped the head of the Smithsonian Charles D. Walcott secretly make major modifications to a failed aerodrome built by Professor Samuel P. Langley in 1903 to make it appear to be able to fly. Once demonstrated Walcott then ordered the Langley machine be restored to its 1903 condition before being put on display to cover up the deception. It took until 1928 for the Smithsonian Board of Regents to pass a resolution acknowledging that the Wright brothers deserved the credit for "the first successful flight with a power-propelled heavier-than-air machine carrying a man."

Beginning in 2011, Russell Klingaman—a prominent Wisconsin aviation/patent attorney, aviation law journalist, and instructor in Aviation Law at Marquette University Law School"Aviation Lecture Series: Wrights vs. Curtis - The Patent Wars,"
2016, WACO Air Museum, retrieved December 4, 2017Klingaman bio note
in ''Midwest Flyer'' June–July 2016, as archived at issuu.com, retrieved December 4, 2017"Russell Klingaman,"
''Alumni,'' University of Wisconsin, retrieved December 4, 2017—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.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."Wrights v Curtiss Patent Wars.mht"
itenerary, for AirVenture, Experimental Aircraft Association"Russell Klingaman: Presentations"
HinshawLaw.com

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.

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.

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.

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 then obsolete ''wing-warping'' technique of the Wrights, or by the far more popular ''ailerons'' also patented in 1906 by the Wright brothers and used by Curtiss.

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 in the United States, which were desperately needed at the onset of 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.

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; of that the major part would go to the Wright-Martin and Curtiss companies, until their respective patents expired. 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. 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. Critics said the brothers' actions may have retarded the development of aviation, and compared their actions unfavorably to European inventors, who worked more openly.

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.

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

Prior art

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.Origins of Control Surfaces
Aerospaceweb Boulton's patent, No. 392, awarded in 1868 some 40 years before ailerons were 'reinvented', became forgotten until the aileron was in general use. Aviation historian Charles Gibbs-Smith, 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."

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.Harwood, CS and Fogel, GB "Quest for Flight: John J. Montgomery and the Dawn of Aviation in the West," University of Oklahoma Press, 2012. 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, 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.

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.

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. 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. Henri Farman's single-acting ailerons on the ''Farman III

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