Owing to the fact that the Wright brothers have enjoined a number of
professional aviators from using their system of control, amateurs have
been slow to adopt it. They recognize its merits, and would like to use
the system, but have been apprehensive that it might involve them in
litigation. There is no danger of this, as will be seen by the following
statement made by the Wrights:
What Wright Brothers Say.
"Any amateur, any professional who is not exhibiting for money, is at
liberty to use our patented devices. We shall be glad to have them do
so, and there will be no interference on our part, by legal action, or
otherwise. The only men we proceed against are those who, without our
permission, without even asking our consent, coolly appropriate the
results of our labors and use them for the purpose of making money.
Curtiss, Delagrange, Voisin, and all the rest of them who have used our
devices have done so in money-making exhibitions. So long as there
is any money to be made by the use of the products of our brains, we
propose to have it ourselves. It is the only way in which we can get
any return for the years of patient work we have given to the problem of
aviation. On the other hand, any man who wants to use these devices for
the purpose of pleasure, or the advancement of science, is welcome to do
so, without money and without price. This is fair enough, is it not?"
Basis of the Wright Patents.
In a flying machine a normally flat aeroplane having lateral marginal
portions capable of movement 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.
Application of vertical struts near the ends having flexible joints.
Means for simultaneously imparting such movement to said lateral
portions to different angles relatively to each other.
Refers to the movement of the lateral portions on the same side to the
same angle.
Means for simultaneously moving vertical rudder so as to present to
the wind that side thereof nearest the side of the aeroplane having the
smallest angle of incidence.
Lateral stability is obtained by warping the end wings by moving the
lever at the right hand of the operator, connection being made by wires
from the lever to the wing tips. The rudder may also be curved or warped
in similar manner by lever action.
Wrights Obtain an Injunction.
In January, 1910, Judge Hazel, of the United States Circuit Court,
granted a preliminary injunction restraining the Herring-Curtiss
Co., and Glenn H. Curtiss, from manufacturing, selling, or using for
exhibition purposes the machine known as the Curtiss aeroplane. The
injunction was obtained on the ground that the Curtiss machine is an
infringement upon the Wright patents in the matter of wing warping and
rudder control.
It is not the purpose of the authors to discuss the subject pro or con.
Such discussion would have no proper place in a volume of this kind. It
is enough to say that Curtiss stoutly insists that his machine is not
an infringement of the Wright patents, although Judge Hazel evidently
thinks differently.
What the Judge Said.
In granting the preliminary injunction the judge said:
"Defendants claim generally that the difference in construction of their
apparatus causes the equilibrium or lateral balance to be maintained and
its aerial movement secured upon an entirely different principle from
that of complainant; the defendants' aeroplanes are curved, firmly
attached to the stanchions and hence are incapable of twisting or
turning in any direction; that the supplementary planes or so-called
rudders are secured to the forward stanchion at the extreme lateral ends
of the planes and are adjusted midway between the upper and lower
planes with the margins extending beyond the edges; that in moving the
supplementary planes equal and uniform angles of incidence are presented
as distinguished from fluctuating angles of incidence. Such claimed
functional effects, however, are strongly contradicted by the expert
witness for complainant.
Similar to Plan of Wrights.
"Upon this contention it is sufficient to say that the affidavits for
the complainant so clearly define the principle of operation of the
flying machines in question that I am reasonably satisfied that there
is a variableness of the angle of incidence in the machine of defendants
which is produced when a supplementary plane on one side is tilted
or raised and the other stimultaneously tilted or lowered. I am also
satisfied that the rear rudder is turned by the operator to the side
having the least angle of incidence and that such turning is done at the
time the supplementary planes are raised or depressed to prevent tilting
or upsetting the machine. On the papers presented I incline to the view,
as already indicated, that the claims of the patent in suit should be
broadly construed; and when given such construction, the elements of
the Wright machine are found in defendants' machine performing the
same functional result. There are dissimilarities in the defendants'
structure--changes of form and strengthening of parts--which may be
improvements, but such dissimilarities seem to me to have no bearing
upon the means adopted to preserve the equilibrium, which means are the
equivalent of the claims in suit and attain an identical result.
Variance From Patent Immaterial.
"Defendants further contend that the curved or arched surfaces of the
Wright aeroplanes in commercial use are departures from the patent,
which describes 'substantially flat surfaces,' and that such a
construction would be wholly impracticable. The drawing, Fig. 3,
however, attached to the specification, shows a curved line inward of
the aeroplane with straight lateral edges, and considering such drawing
with the terminology of the specification, the slight arching of the
surface is not thought a material departure; at any rate, the patent in
issue does not belong to the class of patents which requires narrowing
to the details of construction."
"June Bug" First Infringement.
Referring to the matter of priority, the judge said:
"Indeed, no one interfered with the rights of the patentees by
constructing machines similar to theirs until in July, 1908, when
Curtiss exhibited a flying machine which he called the 'June Bug.' He
was immediately notified by the patentees that such machine with its
movable surfaces at the tips of wings infringed the patent in suit, and
he replied that he did not intend to publicly exhibit the machine for
profit, but merely was engaged in exhibiting it for scientific purposes
as a member of the Aerial Experiment Association. To this the patentees
did not object. Subsequently, however, the machine, with supplementary
planes placed midway between the upper and lower aeroplanes, was
publicly exhibited by the defendant corporation and used by Curtiss in
aerial flights for prizes and emoluments. It further appears that the
defendants now threaten to continue such use for gain and profit, and to
engage in the manufacture and sale of such infringing machines, thereby
becoming an active rival of complainant in the business of constructing
flying machines embodying the claims in suit, but such use of the
infringing machines it is the duty of this court, on the papers
presented, to enjoin.
"The requirements in patent causes for the issuance of an injunction
pendente lite--the validity of the patent, general acquiescence by the
public and infringement by the defendants--are so reasonably clear that
I believe if not probable the complainant may succeed at final hearing,
and therefore, status quo should be preserved and a preliminary
injunction granted.
"So ordered."
Points Claimed By Curtiss.
That the Herring-Curtiss Co. will appeal is a certainty. Mr. Emerson R.
Newell, counsel for the company, states its case as follows:
"The Curtiss machine has two main supporting surfaces, both of which are
curved * * * and are absolutely rigid at all times and cannot be moved,
warped or distorted in any manner. The front horizontal rudder is used
for the steering up or down, and the rear vertical rudder is used only
for steering to the right or left, in the same manner as a boat is
steered by its rudder. The machine is provided at the rear with a fixed
horizontal surface, which is not present in the machine of the patent,
and which has a distinct advantage in the operation of defendants'
machine, as will be hereafter discussed.
Does Not Warp Main Surface.
"Defendants' machine does not use the warping of the main supporting
surfaces in restoring the lateral equilibrium, but has two comparatively
small pivoted balancing surfaces or rudders. When one end of the machine
is tipped up or down from the normal, these planes may be thrown in
opposite directions by the operator, and so steer each end of the
machine up or down to its normal level, at which time tension upon them
is released and they are moved back by the pressure of the wind to their
normal position.
Rudder Used Only For Steering.
"When defendants' balancing surfaces are moved they present equal angles
of incidence to the normal rush of air and equal resistances, at each
side of the machine, and there is therefore no tendency to turn around a
vertical axis as is the case of the machine of the patent, consequently
no reason or necessity for turning the vertical rear rudder in
defendants' machine to counteract any such turning tendency. At any
rate, whatever may be the theories in regard to this matter, the fact is
that the operator of defendants' machine does not at any time turn his
vertical rudder to counteract any turning tendency clue to the side
balancing surfaces, but only uses it to steer the machine the same as a
boat is steered."
Aero Club Recognizes Wrights.
The Aero Club of America has officially recognized the Wright patents.
This course was taken following a conference held April 9th, 1910,
participated in by William Wright and Andrew Freedman, representing the
Wright Co., and the Aero Club's committee, of Philip T. Dodge, W. W.
Miller, L. L. Gillespie, Wm. H. Page and Cortlandt F. Bishop.
At this meeting arrangements were made by which the Aero Club recognizes
the Wright patents and will not give its section to any open meet
where the promoters thereof have not secured a license from the Wright
Company.
The substance of the agreement was that the Aero Club of America
recognizes the rights of the owners of the Wright patents under
the decisions of the Federal courts and refuses to countenance the
infringement of those patents as long as these decisions remain in
force.
In the meantime, in order to encourage aviation, both at home and
abroad, and in order to permit foreign aviators to take part in aviation
contests in this country it was agreed that the Aero Club of America, as
the American representative of the International Aeronautic Federation,
should approve only such public contests as may be licensed by the
Wright Company and that the Wright Company, on the other hand, should
encourage the holding of open meets or contests where ever approved as
aforesaid by the Aero Club of America by granting licenses to promoters
who make satisfactory arrangements with the company for its compensation
for the use of its patents. At such licensed meet any machine of any
make may participate freely without securing any further license or
permit. The details and terms of all meets will be arranged by the
committee having in charge the interests of both organizations.