Birdmen

by Lawrence Goldstone

  As the legal proceedings inched forward, Curtiss conducted himself as if they did not exist. His factory hummed along in a process of almost continuous expansion and his various lines of business all achieved unprecedented profits. In June, the Curtiss school in Hammondsport broke all records by conducting 240 training flights in a single day. In July, Curtiss produced the true flying boat, “not an aeroplane with boats attached, but a bona fide, dyed-in-the-wool, honest-and-truly motor boat with wings and is an improvement on the experimental flying boat.”4 It was the most advanced craft ever built; included a collapsible waterproof hood to protect the operator from spray and was “so strongly built that it can be beached with safety even in a high surf.” Almost immediately, Curtiss sold models in France, Germany, Russia, and Japan, and orders came in “faster than the machines could be built.” It also did not hurt publicity that Curtiss aviator Hugh Robinson took off from Keuka Lake and flew a physician to the other side to tend a young boy who had fallen from a balcony and broken his hip, a story that was picked up by newspapers across America.

  Hydroplanes had become immensely popular and any number were being designed and thrown on the market, including by the Wright Company, but the Curtiss models were invariably superior. In August, confident that the trial would not take place as scheduled, he sailed for Europe to help overseas sales while the Wright Company opened a hydroplane school in Glen Head, New York.

  Before he left, American aviation saw progress of a different sort. In July, the army tested a special airplane-mounted, air-cooled machine gun invented by Lieutenant Colonel Isaac Lewis of the army’s Coast Artillery Corps, which was capable of firing up to six hundred rounds per minute.*1 A Wright B was used since the Wright C had yet to pass its performance tests.

  Curtiss had to deal with crisis as well. In November 1912, Jerome Fanciulli, whose energy and exceptional business instincts had both propelled the Curtiss Exhibition Team to preeminence and created a marketing and sales powerhouse, left to head up “Aquaero,” a subsidiary of the Electric Boat Company of New London, Connecticut. Fanciulli intended to “inject new life into the aeroplane business” with a series of radical design improvements in flying boats. Anticipating an increase in government funding, Fanciulli set up shop in Washington, D.C., intending to manufacture airplanes for both commercial and military use.*2 Replacing Fanciulli would be extremely difficult and in the end Curtiss didn’t try.

  Fanciulli’s departure was particularly ill-timed as at that moment Curtiss was facing a vital decision. He had received overtures from a number of foreign nations, including Russia and France, offering facilities and other incentives to relocate within their borders in the event he lost the case. France especially would have had appeal. They might have overstated their role in pioneering aviation but there was no doubt that by the end of 1912 they were leading it. On December 11, for example, Roland Garros set a new altitude record of 19,027 feet, almost doubling Beachey’s Chicago mark in sixteen months. Curtiss refused to commit to any of the offers but neither did he unequivocally turn them down.

  He was in California, at North Island, when the decision came down on February 21, 1912. To the surprise of no one, except perhaps Curtiss himself, Judge Hazel ruled completely and unambiguously for the Wrights. Citing a number of precedents, although oddly not Westinghouse, Hazel wrote, “Having attained success where others failed, they may rightly be considered pioneer inventors in the aeroplane art. Their concept was practical and their combination of old and new elements meritoriously advanced the operativeness of aeroplanes of this type from which astonishing flights have resulted.” The concept of pioneering, broad in itself, was applied more broadly still. “And even if the patentees were not strictly pioneers, in the sense of producing an apparatus novel in its entirety, they nevertheless strikingly surpassed their predecessors in devising means for restoring lateral balance, and are entitled to a liberal construction of their claims in controversy, and to the application of a range of equivalents that will include an aeroplane appropriating substantially the same instrumentalities and the same principle of operation.”

  Hazel then agreed with the Wright claim that “the same principle of operation” seemed to apply to any method of restoring lateral balance. Even Augustus Post’s admission that on some occasions he had used the rudder in conjunction with the ailerons was interpreted by Judge Hazel as invalidating Curtiss’s defense.5

  “The defendants,” the judge concluded:

  have embodied in their aeroplane the various elements of the claims in suit. While it is true, as pointed out herein, that the defendants have constructed their machine somewhat differently from the complainant’s, and do not at all times and on all occasions operate the same on the Wright principle, yet the changes they have made in their construction relate to the form only. They have constructed their machine so that it is capable of restoring equilibrium in substantially the same way as is complainant’s machine, and the evidence is that on occasions, depending upon aerial conditions or other disturbing causes, they use the vertical rudder, not only to steer their machine, but to assist the ailerons in restoring balance.6

  Having chosen sweeping acceptance, Judge Hazel showed little patience for detail.

  It is unnecessary to further answer the arguments advanced at the bar bearing on the defense of noninfringement, as to do so would extend this opinion beyond reasonable length. Everything relating to the testimony and the criticisms thereon has not been fully treated, yet the material features have been sufficiently elaborated. The questions of law in the case are important; but the questions of fact are controlling, and in view of the novelty of the claims and their scope, the question of infringement is resolved adversely to the defendants as to the claims which are the subject of this controversy.

  Curtiss’s only victory seemed simply a postponement of the inevitable but it would prove to be a good deal more. “A decree may be entered, with costs, in favor of the Wright Company, as prayed in the bill; but, because of the importance of the litigation and of the questions involved, a supersedeas will be allowed, upon condition that an appeal be diligently prosecuted.”

  As Curtiss promised to do just that, from a practical standpoint the decision would have no immediate effect other than to cost Curtiss $10,000 for his bond. Still, most of those who were convinced they would soon have to deal with Orville, hat in hand, praised the decision. The most amusing comment came from the former president of the Aeronautical Society, whose organization only six months before had insisted the Wright claims were groundless. “The decision by Judge Hazel is to be highly commended for the conscientious and painstaking effort to arrive at sound conclusions and there is no question but that from the evidence adduced before the court, his decision would have been reached by any other equally conscientious judge.”7

  Former Curtiss intimate Thomas Baldwin deftly turned with the prevailing winds. “I cannot see why it would harm anybody to pay the Wright Company a reasonable royalty. I have always been of the opinion and do know that if it had not been for the Wright brothers, none of us would have been flying.… I think we all owe to them a loyal support at this point.”

  From his correspondence as well as his public pronouncements there is no doubt that Curtiss believed he was a victim of injustice. Two months before the decision, he had written to Washington Irving Chambers, “[The Wright brothers’] success in actual flying led them to try to make their patent cover things it was not intended to cover, and their exploitation as the first to fly has been used in an effort to get the court to enlarge the scope of their patent. The lawyers have tried to show we copied their machine, purposely making slight changes to avoid infringing their patent and they now claim our rudder is in no sense a rudder but simply a vane used for counteracting the turning effect, as in their machines.”8

  Curtiss never seemed to grasp the notion of pioneer patents; either his lawyers had been negligent in not informing their client of the most important change in patent law in a c
entury, or they had so informed him and Curtiss refused to acknowledge that such a restrictive measure could actually exist. In either case, Curtiss quite clearly felt himself not only heroic in standing up to a couple of bullies but also a defender of other persecuted opponents of the Wrights. “Had we not taken this stand, the Wright Co. would have been in the position to enjoin all manufacturers and the whole industry would have been monopolized. Not only warping machines, but aileron construction and the Farman construction would have been controlled; in fact, any machine that could fly, including hydroplanes would come under jurisdiction of the Wright patent, so that the trade certainly owes us something.”

  Orville wasn’t present when the decision he had awaited for four years was published; he had sailed to Europe with Katharine earlier in February to deal with the patent issues there. In Germany, lawyers were appealing the decision effectively disallowing the Wright patent, and in France, despite favorable rulings, the Wright claims had yet to be enforced as a final decision was repeatedly postponed pending further expert evaluation. The first stop, however, was in England, where Orville formally, at long last, established a British subsidiary, of which he was named chairman of the board. That turned out to be the only good news they would get. In Leipzig, five days after Judge Hazel’s decision in Buffalo, the German supreme court upheld the earlier decision and ruled that the Wright patent was unenforceable except where the three-axis system was employed specifically as described.*3 The French court ruled in their favor, that wing warping and the rudder need only “co-exist,” but once again granted a motion to stay the judgment while the decision was evaluated by another panel of experts.

  Curtiss leapt on the rulings, discussing them, oddly, as if Wilbur were still alive. “Recent cable reports give the impression that the Wrights had won sweeping decisions in the European courts, whereas the German decisions only uphold the Wright claims for the use, in combination, of the wing warp and vertical rudder, but refuse the claims on these devices working independently; and also deny that the Wright patent in any way covers ailerons.… In all machines now manufactured, including those made by the Wrights, the wing warping and vertical rudder are used independently.” He claimed, inaccurately, that the French decision was largely the same.

  Orville and Katharine sailed home in mid-March. Europe might be a loss but final victory in the United States seemed within their grasp. Unless the circuit court defied the odds and threw out all Judge Hazel’s reasoning in Curtiss’s appeal, they had every reason to believe any remaining impediments to monopoly would be smashed.

  They were home less than a week when disaster struck Dayton. A series of winter storms over frozen ground caused the Great Miami River to overflow its banks and swamp an inadequate series of levees, leaving parts of the downtown under as much as twenty feet of water. Fires from broken gas lines broke out across the city. Hundreds died, thousands of homes were destroyed, and damage estimates were put at $100 million.

  Although the Wright factory was largely unharmed and some early concerns about Milton’s safety were quickly assuaged, all the records of Wilbur and Orville’s experiments as well as irreplaceable photographs and glass-plate negatives were stored in the shed behind the house on Hawthorn Street. Fortunately for the Wright family and history, the most important materials were on the second floor, which the floodwaters stopped just short of reaching. In the end, the Wrights suffered only a modest loss of their personal possessions and almost nothing vital to the business. Even the 1903 airplane, stored in a flooded shed, could be salvaged after cleaning. Within two weeks, the factory had reopened and three weeks after that Orville was experimenting on the Great Miami River with what he called the Wright Company’s first true hydroplane, the CH, which was in truth merely a Model C with a pontoon slapped on.

  But just before Orville was prepared to introduce the CH, Curtiss unveiled his latest design, the first-ever tractor hydroplane, built specifically for Wright adversary Harold Fowler McCormick. Curtiss was innovating at such a pace that he said designating his models would be meaningless. The CH, a clumsy, badly performing craft that never met the navy’s performance criteria, was rendered obsolete before it ever left the water.

  Tractors were beginning to supplant pushers across the industry; largely because of the crashes of the Wright C, the army would soon stipulate that all land-based aircraft must have front-mounted engines. Wing design was also in flux. Monoplanes had appeal to designers for sport flying, but for exhibitions—or in war—monoplanes had yet to demonstrate sufficient strength to hold up under the increased stress. Curtiss was actively experimenting in both technologies; Orville was not.

  Orville was also proving to be an ineffective manager. Grover Loening had just begun at the Wright factory in mid-1913 and, despite the fact that he adored Orville personally, he was distressed at what he saw. “Factory organization was pretty rough. Orville would delay making a decision and drive us all nuts trying not to disobey his orders on the one hand and yet not knowing what to do.”

  A large part of the problem was that Orville remained consumed with Curtiss. He and Katharine made no secret that they held him responsible for Wilbur’s death. Frank Russell, whom Orville had recently fired, had witnessed Wilbur’s descent. “The last two years of Mr. Wilbur Wright’s life were devoted entirely to his fight with Curtiss on patent matters.… Throughout the formative period, when we built the first airplanes, started the first exhibition business in this country, Orville Wright did all of the work, because Wilbur Wright had to devote himself, if you please, to patent suits. Wilbur Wright died of typhoid fever because he worked himself to death fighting a patent suit.”9 Loening added, “Orville and Katharine had preying on their minds and characters the one great hate and obsession, the patent fight with Curtiss. It was a constant subject of conversation, and the effort of Curtiss and his group to take credit away from the Wrights was a bitter thing to stand for … it monopolized Orville’s attention and discouraged any attempt to incorporate the latest technical advances into the design of Wright aircraft.”10

  This lack of attention to the product manifested itself most acutely in the Wright C, which was described as “obsolete … slow, tail-heavy, and unstable.” The C was plagued with crashes but characteristically Orville resisted any suggestion of flaws in the design and insisted pilot error was to blame. Meanwhile, “the death toll continued to mount” among military flyers in Wright aircraft.11 Two were killed in a Wright B in September 1912, another in a B in July 1913, and four more in C’s later that year.

  Orville convinced himself that his automatic stabilizer was the answer. At the expense of his obligations as an executive and manager, he threw himself into perfecting the apparatus and then tested it in secret. In addition to providing the solution to the crashes plaguing the C’s, Orville was determined to win the Aero Club prize for 1913 and wrest it away from Curtiss, who had won for 1912 as well as 1911. In October 1913, Orville was granted a patent for the design, and by the following month he was confident that the device was ready to be unveiled to the world. But he didn’t schedule a public test until the last day of the year. As Wilbur had with the Michelin trophy, choosing December 31 would ensure that no one, especially Curtiss, could then best him for the Aero Club prize by unveiling some other improvement. The demonstration “would be a particularly sweet moment … a way to use the invention to triumph over Curtiss.”12

  And a triumph it was. Orville made seventeen flights in Dayton that day before three Aero Club representatives, one of whom was Grover Loening. During the last flight, Orville made seven successive turns with his hands off the controls. The Aero Club members were suitably wowed; Orville would have his trophy. No reporters had been present but four days later, Orville cabled a description of the device to the Daily Mail that was reprinted in The New York Times. In accompanying remarks, Orville proclaimed with great satisfaction that “we have invented an automatic stabilizer which will revolutionize flight.” His new invention would, for the f
irst time, make “flying as nearly fool-proof as anything can be” and thus “aerial transportation as safe as any other mode of travel.” He promised to market the device by spring and “expressed the belief that the aeroplane would be in general use for commercial transportation within a very short time.” Finally, he asserted that the crashes that had plagued aviation, by which he meant specifically his airplanes, had been caused by pilot error, which would now be eliminated by the automatic stabilizer.13 The Daily Mail called the invention “a contribution to the art of flying only second in importance to the invention of the powered airplane.”

  As satisfying as winning the Aero Club trophy was, it paled before the news Orville would receive two weeks later.