IN COME THE WRIGHT BROTHERS
If Eli Whitney was on the leading edge of America’s innovation boom, Wilbur and Orville Wright came at the end. Between them, the amount of innovation is unparalleled. For the Wright Brothers, the U.S. patent system was both friend and foe: foe because of the ban on granting patents claiming flying machines, and friend because the patent, when it was finally granted, gave the Wright Brothers a virtual monopoly over any airplane. And what happened to the Wright Brothers foreshadowed what was to come to future generations of inventors.
The biggest problem faced by the early aviation pioneers turned out to be quite different than anyone expected. To most, it was simply how to keep a body from falling out of the air while propelling it forward. But by the turn of the twentieth century, experimenters had discovered that it was quite possible to glide a machine through the air on wings. The real problem was how to keep the wings from tipping from side to side. Controlling the plane when turning was even more difficult. Without the necessary controls, the flying machine would simply crash to the ground. This was where the Wright Brothers focused their efforts.
Wilbur and Orville Wright grew up under the hand of an evangelical father who found himself entangled in legal battles over church property after his congregation split. Wilbur, an obsessive reader, assisted his father with his legal issues. The skills he developed thinking through legal issues would help Wilbur in solving the problem of how to keep a flying machine in the air. Orville was the first one to take on a business, starting a printing press as a teenager. In 1893 Wilbur opened a bike shop, selling a new kind of bicycle with two wheels of the same size. Orville joined his brother, although Orville’s dream was to start an automotive company. Wilbur suggested it would be easier to make a flying machine than to make money building cars.
When Orville Wright became deathly ill with typhoid in 1896, Wilbur made a vow that if his brother was spared, together they would dedicate their lives to solving the problem that killed “The Flying Man,” Otto Lilienthal, during his attempt at flight. So when Orville returned to health, Wilbur immediately ordered a library of books, pamphlets, and publications on aerodynamics. Wilbur quickly discovered that their biggest problem would be finding a way to control the lateral stability of the flying machine. Traditional thought was to keep the wings level, even while turning. Wilbur’s genius was in taking an opposite approach and letting the plane roll during turns, in the same way he banked his bicycle during turns. Identifying how to do this with an airplane became his quest.
The Wright Brothers solved the problem of lateral stability by warping the wings, which involved bending the edges of the wings at their far ends. The idea came to Wilbur in July 1899 when throwing an empty bicycle tube box into the garbage. Noticing the twisting box sparked an idea. When the airplane began tipping to one side, the plane might be stabilized by twisting or warping the wings in a certain way. Starting with kites and then graduating to gliders, Wilbur perfected his wing warping idea. Next came prototypes, then Kitty Hawk. It wasn’t until March 23, 1903 that the idea was perfected enough so that Wilbur felt comfortable in filing his patent application. Today, ailerons are used to stabilize airplanes, but the original concept of how to stabilize an airplane came from Wilbur’s wing warping idea.
The Wright Brothers’ experience with the patent office was different than that of most of their peers. In their first attempt, their application was rejected outright by the patent office, who refused to grant any patents on flying machines. It took a full three years, until May 22, 1906, for the Wright Brothers to convince the patent office to issue their patent to the airplane.
What few realize is that the battle over who owned the patent rights to the airplane, and thus the ability to decide who could fly in America’s skies, came down to how to control an airplane in flight. In other words, the Wright Brothers didn’t claim to own the general principle of flying, just one specific way to practically accomplish this. But it turned out that nobody could figure out any other way to keep a flying machine in the air. In essence, then, the Wright Brothers patent did control the skies. In turn, that generated the controversy over their patent.
While the Wright Brothers began pursuing their patent in 1903, their only funding (a meager $1,000) came from their bicycle shop. After their patent issued, they were unable to find interested investors in America, so they traveled to Europe and signed a contract with France. Back in the U.S., those interested in the aviation business chose to produce their own airplanes, rather than finance the Wright Brothers’ business. The most successful of these early manufacturers was Glenn Curtiss.
With an uncooperative patent office that was unwilling to issue the Wright Brothers’ their patent, the Wright Brothers were left without recourse, helplessly watching as their patent languished in the patent office and competitors slipped in. Even after issuance, the Wright Brothers still faced the issue of patent enforcement. They could barely finance their own operations, let alone take on an entire industry—even if they had created it.
The irony of the Wright Brothers situation was that their patent didn’t become valuable until their competitors became successful and the airplane business took off in the U.S. As soon as the world recognized the airplane for what it really was, they also realized how powerful the Wright Brothers’ patent had become.
Seeing the Wright Brothers’ patent as a revenue source, American businessmen organized forces by forming the Wright Company, issuing $1 million in stock with a paid-in value of $200,000. These businessmen believed they could license the patent and collect large royalties. But to do this, they first needed to stop Curtiss from selling infringing airplanes. Investors included Cornelius Vanderbilt, August Belmont, and Robert Collier, with J.P. Morgan withdrawing his investment for fear that he would overshadow the other investors.
Those who assumed the Wright Brothers would not obtain their patent and took the risk of selling airplanes during the three years while the patent application was pending in the patent office were now facing a serious problem. They were now infringing the Wright Brothers’ patent. The infringers tried to fend off the inevitable. In 1908, the Aero Club of America sought a solution to the infringement issue by attempting to raise $100,000 to purchase U.S. rights to the Wright Brothers’ patent. This venture failed, but Curtiss and his Herring-Curtiss Company didn’t stop making airplanes. This forced the Wright Brothers’ hand, and the Wright Company sued Curtiss for patent infringement in 1909.
The Wright Brothers were fortunate in that the judge handling their case against Curtiss was the same judge who handled Selden’s first automobile infringement case. Judge Hazel found for the Wrights in January 1910 and issued a preliminary injunction. Curtiss appealed and six months later the injunction was lifted after Curtiss posted a $10,000 bond. The rest of the infringement case would drag on for seven more years until World War I prompted government action to settle the case.
Still, from 1909 to the start of World War I, the Wright Brothers’ patent effectively shut down all competition in the U.S. while they awaited the outcome of the case against Curtiss. The patent was generally viewed to be so strong that in 1915, Eastern investors bought the Wright Company from Orville for $1.5 million.
The decade-long battle with Curtiss may have had the greatest psychological impact on turning the courts and the public against the patent system. The Wright Brothers claimed that their patent covered any way to laterally control the plane in flight, referred to as the roll of the plane. To do this, the Wright Brothers used wing warping, a way to twist the plane wings at their leading and trailing edges by using a system of cables to control the up-and-down movement of the wing tips. The other way to control the roll of the plane is to use ailerons. Herein lay the problem—the Wright Brothers claimed their patent covered both ways, even though the patent described only wing warping. And the Wright Brothers were correct if you read the literal language of the claim, which states that the wing has lateral marginal portions that may be moved to different angles relative to the normal plane of the wing. Both wing warping and ailerons involve moving parts of the wing off a normal plane.
But the public didn’t view it that way, especially when courts used language stating that ailerons were “equivalents.” The decade-long case had tested the public’s patience. Many felt Orville Wright was overreaching when he claimed his patent covered any way to laterally control the plane in flight even though the patent described only one way—wing warping. Ironically, it was Alexander Bell—the innovator accused of stealing broad language describing the telephone from Elisha Gray’s patent application—who spearheaded a charge to limit the scope of the Wright Brothers patent. And he did it by using Ford’s former patent attorney, who continued to fuel the fire by encouraging Curtiss to sell airplanes with ailerons, rather than using wing warping. The end effect was to create a debate over patents that would last for a century. As pro- and anti-patent forces fought for turf, the patent system became more complex and unruly until what happened in the Ford and Wright Brothers cases seems trivial.
The concept that a competitor could infringe a patent, not for doing exactly what the patent claimed, but doing something “equivalent” to what it claimed caught hold in American jurisprudence. The effect was to increase the scope of patent claims, in essence making the patent broader in scope, and a more powerful weapon. It’s no wonder that courts tried to curb this power. But how they did it only served to complicate the patent landscape, increasing the cost to obtain, enforce, and defend a patent. Rather than simply eliminating the doctrine of equivalents to reduce the power of a patent’s reach, courts and the legislature chose to make it harder to obtain a patent (or easier to invalidate an existing patent). The principal way to accomplish this was—and still is—to permit a patent to be denied or invalidated if the invention is “obvious,” and this has made it nearly impossible for small inventors to participate in the protections afforded by the patent system.