Birdmen

by Lawrence Goldstone

  First flight. One of the best-known photographs in the world.

  Once again the motor was started and Wilbur ran along holding one of the wing tips to steady it. This time there was no glitch. The aircraft took off at the end of the track and flew; only 120 feet perhaps, but those forty yards were the first ever traveled in a controlled, powered, heavier-than-air flight by a human being. Even the photograph was perfect. Daniels caught the machine just as it left the ground, Wilbur in mid-stride at its right. No image is more famous.

  The Wrights made three more flights that day, the last of which was a remarkable 852 feet by Wilbur. After they had finished, a gust of wind blew over the world’s first airplane, the Flyer, as they named it, damaging it sufficiently that the Wrights decided not to waste their time on repairs. As Wilbur and Orville saw it, their prototype was already obsolete. Their plans called for a model vastly improved and they intended to lose no time in creating it.

  Patent Pioneering

  To what degree the Wrights wanted to inform the public of their success has always been a matter of confusion, shared perhaps by Wilbur and Orville themselves. On December 17, the day of the flights, Orville sent a telegram to his father. “Success. Four flights Thursday morning all against twenty-one mile wind. Started from level with engine power alone. Average speed through air, thirty-one miles. Longest 57 seconds. Inform press. Home Christmas.”*1 But Wilbur also sent a curt telegram to Octave Chanute on December 28 that said merely, “We are giving no pictures nor description of machine or methods at present.”

  Upon receipt of the December 17 telegram, Bishop Wright sent his son Lorin to The Dayton Journal but the editor did not consider a fifty-seven-second flight newsworthy. “If it had been fifty-seven minutes, then it might have been a news item,” the editor sniffed. The following day, however, a report appeared in the Virginian-Pilot that was later picked up by newspapers across America. The Pilot reported that on a machine with “two six-blade propellers, one arranged just below the frame so as to exert an upward force when in motion and the other extending horizontally to the rear from the center of a car, furnishing the forward impetus,” Wilbur Wright “flew for three miles in the face of a wind blowing at a registered velocity of 21 miles per hour, then gracefully descended to earth at the spot selected by the man in the navigator’s car as a suitable landing place.” There were no photographs of the craft, which of course did not exist, nor any real detail of the flights. Many of the more prominent newspapers such as The New York Times and The Washington Post ignored the story altogether.

  By the beginning of 1904, a corrected account appeared in The Cincinnati Enquirer. This version, supplied by Wilbur and Orville, provided an accurate version of the events in North Carolina and included photographs of the brothers and of the glider (but not the powered craft) in flight. The story was also picked up by a number of newspapers from Virginia to Hawaii, along with Wilbur’s statement verbatim, but it was generally treated in a low-key fashion.1 Why the Wrights’ achievement did not receive the sort of triumphant headlines that would have greeted Langley’s success remains a mystery. Perhaps the spectacular assertions were difficult to take seriously after the aerodrome’s equally spectacular failure. The New York Times, for example, continued to ignore the Wrights and at the end of January 1904 was still reporting on the Langley machine as if it were still the big news in aviation; at the end of February, The Washington Times reported on the Wrights’ machine as if it were a glorified Lilienthal glider.

  There were those, however, who took the story very seriously indeed. On December 26, the Wrights received an extraordinary letter from Augustus Herring. “I want to congratulate you on your success at Kitty Hawk,” he began, “and I want to write you a frank, straightforward letter.”

  What followed was anything but. “To begin with,” Herring observed, “I do not know the construction of your power machine any more than you know the details of my latest but since it too is operative and represents a gasoline driven two surface machine reduced to near its simplest form it seems more than probable that our work is going to result in interference suits in the Patent Office and a loss in value of the work owing to there being competition.” Even by Herring’s standards this statement was astonishing in its mendacity. There was, of course, no “latest”; Herring had not succeeded in powered flight since his compressed-air model five years before, and he had no design with even a vague hope of satisfying a patent examiner. “I don’t think litigation would benefit either of us if we can come to agreement otherwise,” he added, “because there will be enough money to be made out of it to satisfy us all.” Herring could not have realized how laughable was an attempt to threaten the litigious Wrights with a lawsuit. He went on to detail the “long and faithful” work he had devoted to the “problem” and how he “spent my fortune and all my earnings on it almost to my last dollar.”

  Herring then attempted to convince Wilbur and Orville that despite anything Octave Chanute might have said, he had designed both the Chanute glider and a powered machine that had traveled seventy-two feet and could be “reconstructed and flown.” Here was the first example of a gambit Herring would employ repeatedly and with great success to hoodwink future business partners—that he had applied for and in some cases been granted a series of patents that could be used to obtain licensing fees from virtually anyone who subsequently succeeded in powered flight.

  Finally, Herring came to it. “Now the point is this: If you turn your invention into a company, I want to be represented in it—not solely because it is in my interests but because it would probably be equally much in yours.” Herring then listed six points in which he asserted that although the machines were similar, his was designed with a more efficient engine, “more reliable for long flights,” and that he had developed an “efficient means for keeping the equilibrium automatically.” This is one boast that was at least partly justified. Herring had long advocated the use of a gyroscope as a controller to achieve automatic lateral stability. Of course, Herring claimed to have built a machine with automatic lateral control—yet another claim that was patently false. As far as anyone could tell, he had never even tested the concept in a prototype.

  Herring concluded, “Would you consider joining forces and acting as one party in order to get the best terms, broadest patent claims and to avoid future litigation?” He proposed a two-thirds and one-third split, generously offering Wilbur and Orville the larger share.

  The Wrights dismissed Herring’s proposal out of hand. They had seen for themselves that Herring’s designs didn’t work. As Wilbur wrote to Chanute, “This time [Herring] surprised us. Before he left camp in 1902 we foresaw and predicted the object of his visit to Washington, we also felt certain that he was making a frenzied attempt to mount a motor on a copy of our 1902 glider and thus anticipate us, even before you told us of it last fall. But that he would have the effrontery to write us such a letter, after his other schemes of rascality had failed, was really a little more than we expected.”2

  Uncertainty about publicity aside, what is not at issue is the Wrights’ plans for their invention. They had decided to seek not only to protect their invention with a patent, but to establish a monopoly under which every manner of controlled flight would fall.3

  Their patent application in 1902 demonstrated the need for expert help, so two weeks into 1904, they contacted Harry A. Toulmin, an experienced patent attorney in Springfield, Ohio. Toulmin’s initial reply to the “Wright Cycle Co.” was perfunctory. A second letter, on January 19, this time to Wilbur, set his fee at eighty dollars and advised that the patent be sought as a “soaring machine,” not a “flying machine.” If the Wrights wanted to apply for the latter, meaning a machine with a motor, “there will be all possible objections raised, a working model, and a demonstration of the operativeness of the device as a flying machine will be insisted upon, and the matter will probably require our personal attention at Washington. For this kind of work we shall be obliged to charge yo
u, in addition to traveling expenses, our per diem rate of $30 for such time as we shall give to the matter.”4

  So the decision was made to pursue a patent for the glider and control system only, avoiding mention of any power source, although later Toulmin modified his view to file “in such a way as to not exclude its being construed as covering a flying machine.” Wilbur also engaged Toulmin to apply for patents in England, France, Germany, Austria, Italy, Russia, and Belgium.

  The application Harry Toulmin filed with the United States Patent Office in March 1904 would set the course of American aviation for the next thirteen years. Rather than simply specify the elements of Wilbur’s wing-warping system as a mechanical construction, Toulmin expanded the notion of wing warping to cover any system where the angle of any device at the wing tips varied the “lateral margins” in opposite directions from the angle of wings at the center.5 Thus Toulmin altered the patent from seeking exclusivity for a device to seeking exclusivity for an idea, the principle of lateral control itself. If such a patent was granted and ratified by the courts, it would apply to configurations that the Wrights themselves had not employed or even conceived of and so virtually no aircraft could subsequently be flown without licensing by Orville and Wilbur, precisely the breadth they were seeking.

  Orville making a right turn, demonstrating the warping of the wings.

  Ten years earlier, Toulmin’s audacity would likely have resulted in a rejection or at least a drastic narrowing of scope. But in 1898, patent law had undergone a profound change; a new and special category of license called a “pioneer patent” had been created by the Supreme Court. In Westinghouse v. Boyden Power Brake Co., Justice Henry Billings Brown had written that “a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art … is entitled to a broad range of equivalents.”*2 Brown did not find “pioneer patent” in the law—no such designation has ever been stipulated in any American statute. Brown’s ruling was “jurisprudential,” applied or simply created by judges based on their interpretation of either the Constitution or the common law. “Pioneer patents,” it was further decided, could not be granted to anyone who merely improves or refines an idea nor can it be the first such patent published in the national registry. But those successful in attaining pioneer status would enjoy an enormous advantage in any subsequent legal action, as a court would generally rule that the patent has been infringed even by a product whose character seems only peripherally related to the plaintiff’s design.

  Patents are widely accepted even among fierce advocates of free trade as necessary to protect innovation, the lifeblood of economic progress, and Brown’s opinion came in a period where corporate and monopoly rights were protected by the Court to a degree never seen before or since in American history. Twelve years before Westinghouse, in Santa Clara v. Southern Pacific Railroad, Chief Justice Morrison Waite first indicated that a corporation enjoyed the same Fourteenth Amendment protections as an individual citizen. In 1905, in Lochner v. New York, the Court struck down a state law that attempted to limit bakery workers to a ten-hour day, which ushered in three decades of the justices voiding laws attempting to regulate conditions in the workplace on the vague and since discredited notion of “liberty of contract.” Toulmin never discussed whether he had filed his application based on Westinghouse, but since it was the most important patent case decided in the previous decade, he could hardly have been unaware of how fertile the possibilities it presented to his clients.

  The stakes for the Wrights increased exponentially. While working to improve and refine their machine to create a salable model from the prototype, they needed not only to protect against the copying of their wing-warping construction, but also to prevent anyone else from developing a similar device before their patent was granted. Pioneer status was not retroactive.

  As with the tests at Kitty Hawk, Wilbur and Orville set to work not in secrecy but wrapped in an odd cloak of invisibility. Rather than return to North Carolina, they secured the use of a hundred-acre meadow called Huffman Prairie to experiment and test-fly improved variations of the Flyer. This they did in full view of the local population, answering questions of any newspapermen who happened along—there were few—while still being largely ignored by the popular press. Once more, they neither shunned attention nor sought it.

  The Wrights’ decision to pursue the Flyer’s development in twilight deepened their conflict with Octave Chanute. When Chanute had encouraged them to seek a patent for their invention, he assumed they would seek protection merely for the mechanics of the wing-warping system. He complained to a friend that the Wrights had become “secretive,” and wrote to Wilbur, “You talked while I was in camp of giving your performance, if successful, all the publicity possible, and you knew that I would not divulge the construction of your machine as I have never disclosed more than you yourself have published. Your telegram indicated a change of policy which you can more fully impart when I see you.”6 Chanute, having experienced what he considered a deceitful grab for credit by Herring, began to suspect that Wilbur would behave in the same fashion. “In the clipping which you sent me you say: ‘All the experiments have been conducted at our own expense, without assistance from any individual or institution.’ Please write me just what you had in your mind concerning myself when you framed that sentence in that way.”7

  Chanute was more than a bit disingenuous here, seeing how he called the Wrights his “pupils” in Europe and added that Wilbur and Orville were bringing “his designs” to fruition. And in an article in The St. Louis Republic on January 4, 1904, announcing his appointment to the coming fair, it was said that “the Wright brothers of Dayton, O., who have recently made the first real flight ever made with a machine not employing gas and heavier-than-air, profited by and followed up to a successful conclusion the experiments originally made by Mr. Chanute.”

  Although Chanute would continue to insist that he had never intended to deny the Wrights full credit for their invention—and perhaps he was just an old man guilty of overstatement—there is little doubt that he saw his role as far more than fatherly inspiration.

  Wilbur’s reply bore similar disingenuousness.

  The object of the statement, concerning which you have made inquiry, was to make it clear that we stood on quite different ground from Prof. Langley, and were entirely justified in refusing to make our discoveries public property at this time. We had paid the freight, and had a right to do as we pleased. The use of the word “any,” which you underscored, grew out of the fact that we found from articles in both foreign and American papers, and even in correspondence, that there was a somewhat general impression that our Kitty Hawk experiments had not been carried on at our own expense, &c. We thought it might save embarrassment to correct this promptly.8

  Despite this exchange, correspondence between Wilbur and the man who would be his mentor remained frequent, with the pleasant tone that had characterized their previous letters. But Wilbur had made his course clear and Chanute was now powerless to influence the two most important people in the field in which he had toiled selflessly for more than a decade. He visited Dayton later in January and once more urged Wilbur to participate in the St. Louis Exposition. The air show, after all, had been put off a year and Wilbur’s previous objection that a glider would be maneuvered out of a prize by Santos-Dumont was moot. Wilbur gave Chanute the courtesy of accompanying him, with Orville, to St. Louis to inspect the fairgrounds, but then once more declined to participate.

  Instead, Wilbur and Orville repaired to Huffman Prairie to pursue their monopoly, confident the groundbreaking innovations in their design would keep them well ahead of any potential competitor. The race might be against time but the time, as the Wrights saw it, was long and their lead insurmountable.

  Yet, like their second season at Kitty Hawk, 1904 turned out to be a frustrating muddle. They began with great confidence; Orville had built
a second, more powerful motor and the Wrights modified the design of the wings, the bracing, and the elevator. But as Langley had discovered, moving from a successful prototype to a machine that could sustain flight sufficiently to interest buyers—especially military buyers—proved more difficult than they anticipated.

  Their troubles began almost immediately. Rumors of their activities had continued to surface, generally accompanied by either incorrect or fanciful descriptions of their machine. In May, perhaps to set the matter straight or in response to Chanute’s prodding but more likely in a reflection of their own uncertainty, the Wrights invited the press to a demonstration of powered flight. But they chose to do so without first testing the newly designed Flyer; public flight would be the craft’s inauguration.

  The result was a boondoggle. On the first day, with about forty reporters present—no photographs were allowed—the Flyer refused to leave the ground in calm winds. After two days of bad-weather delays, the brothers succeeded into coaxing the Flyer into a jaunt of only thirty feet. “Then the Machine Dropped to Earth,” read the headline in one of the few newspapers that reported the event. Most of the remaining reporters left muttering that these Dayton boys were no better than Langley.

  Throughout the season, the Wrights found themselves less successful than with the Kitty Hawk machine. Huffman Prairie lacked the steady winds of the Outer Banks but did possess enough bumps and ruts to make laying a track for launch almost impossible. By the summer, the sixty feet along the North Carolina sand had stretched to 240 feet across uneven Ohio meadowland. And if the wind shifted, as it often did, the track had to be shifted along with it. When Wilbur or Orville was successful in getting the Flyer into the air, the results were maddeningly inconsistent. Sometimes the craft would soar, sometimes it would drop.