Only one of the Wright suits against an individual pilot actually came to trial. The English aviator Claude Grahame-White earned a grand total of $100,000 during a U.S. tour in 1911. The Wright Company sued him for half of that amount. The decision, handed down on January 24, 1912, was in favor of the plaintiffs, in the amount of $1,700. The sum was much smaller than requested, but enough to demonstrate that the American climate would not be congenial to aviators until the patent situation was finally resolved.7
Individuals like Curtiss, Paulhan, and Grahame-White could choose to post bond and take their chances in court, but corporate investors were unwilling to take that risk. The original injunction of January 3, 1910, doomed the already shaky Herring-Curtiss Company. The problems began in October 1909, when the board of directors met at Hammondsport to develop a strategy for fighting the Wright patent suit. Herring was asked to turn over the patent documents that he had pledged to the firm. Surely these materials, predating the Wright patent, would settle the issue. Rather than complying, as his backers had every right to expect, Herring equivocated.
The board, meeting again in a special session that December, threatened Herring with a court order if he did not produce the documents at once. As the discussion grew more heated, Herring and his lawyer withdrew from the boardroom for a private talk. When they did not return, the board members went looking, and discovered that the two men had left the building. Herring returned to New York and went into hiding to avoid being served with the court order for the patent documents. He could not comply. There were no patents—only a yellowing application based on a motorized version of the Chanute-Herring triplane that had been rejected by the Patent Office in 1896, and bits and pieces of correspondence with the Patent Office since that time.8
Judge Hazel’s injunction, arriving on the heels of Herring’s precipitous departure from the firm, finished the company. Unable to sell airplanes or to send an exhibition team into the field, income ceased to flow. Creditors, sensing trouble, quickly drained the treasury. The company filed for bankruptcy on April 10, 1910.
The Herring-Curtiss firm did not die a clean death. Courtlandt Field Bishop sided with Herring in a new lawsuit, claiming that the bankruptcy petition was nothing more than a ruse to get rid of Herring. The suit was rejected and a decree of bankruptcy issued in December 1910.
In fact, Herring and Bishop were correct. On June 14, 1910, the United States Circuit Court of Appeals withdrew the injunction issued against Curtiss by Judge Hazel. The legal tradition against granting injunctions in cases of this sort prevailed. Curtiss was now free to do business until a decision was handed down in the suit.
The success of the appeal was a stroke of double good fortune for Curtiss. Not only was he free to produce flying machines again, but the original company, and the burden of an unwanted partner, were removed. Anxious to set up entirely on his own, he purchased his old plant back from the Herring-Curtiss trustees at auction, and by December 1911 was back in business as the Curtiss Aeroplane and Motor Company.9
The story was far from over. Seven years later, when Curtiss was flush with money as a result of lucrative war contracts with the U.S. and British governments, Herring returned for another round. Still holding two thousand shares of stock in the old company, he pointed out that while Herring-Curtiss had gone bankrupt, the company had not been legally dissolved. He brought suit on the old charges, claiming
once again that the whole episode was trumped up to remove him from the business. The suit was dismissed in 1923. Herring appealed the decision and eventually won a reversal in the New York Supreme Court, which established a panel of arbitrators to work out the financial arrangements.
Herring died in 1926. Curtiss lived until 1930, fighting the suit, which was carried on by Herring’s family with all the resources at their command. His widow, Lena Curtiss, was unwilling to continue the effort, however, and settled out of court for a sum that may have been as high as half a million dollars, although most of the money went for legal fees. Augustus Herring did not live to see it, but he had finally succeeded in making a fortune in the flying-machine business.10
The preliminary injunctions issued by Judges Hazel and Hand gave the Wright brothers an effective monopoly in the flying-machine business in America for the first six months of 1910. Even when the restraints were removed in June of that year, the Wright patent suits continued to threaten American pilots and aircraft builders. Having forced the Herring-Curtiss Company out of business and placed Glenn Curtiss and other competing aviators in legal jeopardy, the Wrights, through their foreign licensees, launched a direct attack on their European competitors.
Late in 1910, the Compagnie Générale de Navigation Aérienne brought suit against six rival aircraft manufacturers (Blériot, Farman, Esnault-Pelterie, Clément-Bayard, Antoinette, and Santos-Dumont) for infringement on the Wrights’ French patents. The case was tried before the Third Civil Tribunal, composed of three judges and a substitute, a state’s attorney boasting special technical qualifications.11
The substitute, who was charged with advising the court on technical matters, issued a statement in March 1911 suggesting that, while the Wrights deserved all recognition and credit for the invention of the airplane, their patent application was invalidated by prior disclosure. Chanute’s lecture to the Aéro-Club in the spring of 1903, coupled with the publication of Wilbur’s first speech to the Western Society of Engineers, had revealed the essential features of the Wright technology prior to the grant of any patent.12
Wilbur, who had journeyed to France to testify at the trial, was much alarmed. The substitute, he complained, “gave us bushels of brightly colored husks, but the kernels went to the infringers.”13
He need not have worried. The Tribunal handed down its decision a month later, on April 29. The judges did not fully agree with the substitute, ruling in favor of the CGNA in every case except that against Santos-Dumont, the only defendant who had not profited by his use of the protected technology. The court did offer the aviators a small loophole, however. Before passing final judgment, a panel of three aeronautical authorities was established to determine whether the key elements of the Wright patent had been anticipated by other aeronautical pioneers.
Discouraged, Blériot announced his willingness to reach an immediate agreement with the Wrights. The others restrained him, insisting on waiting for the final decision of the court, and following it with an appeal if necessary.
Led by Robert Esnault-Pelterie, the most original of the French experimenters, the defendants in the French suit spent the next five years keeping their cause alive before a series of courts and panels. In large measure, the real blame for the protracted legal problems in France lay with the CGNA. The firm, plagued by weak leadership, gave up most of its business and nearly all of the profit to the Astra company, one of its original contract builders. At the same time, CGNA’s pursuit of infringers was halfhearted at best. The questions of infringement and compensation were still not fully resolved when the Wrights’ French patents expired in 1917.14
In Germany, the Patent Office itself sat in judgment on infringement cases, which reached the court system only on appeal. Late in 1911 a consortium of five rival aircraft builders brought suit against Captain von Kehler and the incorporators of the German Wright Company. The Patent Office declared the Wright patent invalid on the grounds of prior disclosure, again citing the Chanute speech and Wilbur’s lecture to the Western Society of Engineers. The Wrights and their German licensees appealed to the Imperial Supreme Court at Leipzig, which upheld the decision.15
The patent suits absolutely consumed Wilbur and Orville’s time and energy during the period 1910–12. They were also responsible for significantly altering the way in which the world viewed the brothers. Prior to 1910, most Europeans regarded the Wrights as a pair of grand eccentrics. They were geniuses, of course, but of an extraordinarily naive and otherworldly sort. The French were genuinely puzzled by these two men who did not smoke, drink, gambl
e, or pursue women. Even François Peyrey, a great admirer, described Wilbur as “This ascetic, who is ignorant of practically everything in life.”16
Their own countrymen, on the other hand, cast them in the mythic role of prototypical Americans. These were good American boys, who, as President Taft remarked, kept their noses to the grindstone and put business before pleasure. The brothers were proof that the old virtues of family solidarity and commitment, hard work and perseverance, retained their validity in the new century.
The Wrights were never without their defenders. Outside the aeronautical community, pro-Wright feeling predominated. The airplane was a product of their hard work and genius; they deserved compensation for their efforts. The brothers had every right to stand up and fight for what was theirs.
Even within aviation circles there were always those who believed that the patent suits were perfectly justified. Charles Hayward, for example, the author of Practical Aerodynamics, the most useful guidebook available to first-generation aircraft builders, argued that the “perfect flood of criticism—even abuse and vilification” directed against the Wrights as a result of the patent suits was “misguided, to say the least.” The situation was simple:
There is … presented on the one hand a patentee who, after years of labor and expenditure of a considerable sum of money, has succeeded in inventing a device of an absolutely revolutionary nature; on the other hand, an enormous number of investigators in the same field who wish to avail themselves of his hard earned success without in any way contributing to the reward which should be his.17
The aeronautical clubs and organizations that sponsored flying meets and contests fell into step behind the Wrights. The Aero Club of America led the way, signing an agreement with the Wright Company on April 8, 1910. The club agreed to sanction only those meets approved by the Wright Company; the company, in turn, agreed to license only those local promoters whom the club had approved.18
It was an ingenious arrangement that served the needs of both parties. The Wrights used the agreement as a public relations device. Who could accuse them of attempting to create a monopoly, or of stifling progress, when they were allowing their competitors to fly infringing machines at specifically sanctioned meets without any fear of legal consequences? The club, on the other hand, could continue to sponsor the meets that were its lifeblood while remaining within the law.
The aviators saw things a bit differently. The patent suits threatened their economic survival. Harry Toulmin had earned his fee: the Wright patents were broad and free of loopholes. If the courts decided in their favor, the brothers would enjoy an absolute monopoly in the flying-machine trade and could demand license fees that would break the backs of their competitors. There were only two choices available to those who would fly: negotiate with the Wrights for the use of the patents, or accept the challenge of a battle in court. For the most part, they were not the sort of men to turn their backs on a fight.
The patents wars were joined, not only before the bar of justice, but also in the court of public opinion. The men whom the Wrights regarded as infringers were anxious to demonstrate that they too stood on moral ground. Louis Blériot led the way in portraying the Wrights as avaricious monopolists threatening to retard the development of aeronautics:
I merely wish to say that it was regrettable to see at the dawn of a science (to encourage which all should have united in their efforts), inventors make the unjustifiable claim of monopolizing an idea, and, instead of bringing their help to their collaborators, prevent them, for no reason, from profiting by some ideas which they should have been happy to see generalized.19
The Wrights expected that sort of response from men whom they were about to haul into court, but they were surprised when Octave Chanute agreed with the critics. Chanute put his thoughts on record as early as August 1909, telling the editor of Aeronautics that he thought “the Wrights have made a blunder by bringing suit at this time.” They would antagonize those who should be their colleagues and slow the natural development of aircraft technology. They might even damage their cause by forcing the defendants to search for prior patents, “which will invalidate their more important claims.”20
“Personally,” Chanute told a reporter for the New York World, “I do not think that the courts will hold that the principle underlying the warping tips can be patented.” Pointing to Mouillard’s experiments with the patented trailing edge tabs, he explained that “there is no question that the fundamental principle was well known before the Wrights incorporated it in their machines.”21
Warping was something that many inventors had worked to develop, “from the time of Leonardo da Vinci.” Chanute himself had introduced the Wrights to the work of their predecessors. “When the Wrights wanted to start, they wrote to me that they had read my book on gliding and asked if I would permit them to use the plans of my biplane…. I turned over all my data which included a copy of the Mouillard patent and information given to me by Dr. Langley and his young engineers Manly, Herring and Huffaker, and made them free of it.”22
Wilbur, who had always been closest to Chanute, wrote on January 20, 1910, requesting an explanation. Chanute’s recent remarks in the press represented an opinion “quite different from that which you expressed in 1901 when you became acquainted with our methods.” Judges in the United States and Europe had considered and rejected any possibility that the Mouillard patent might have anticipated theirs. Nor could they find any references in Progress in Flying Machines to early experiments that might predate their own work with wing warping. Wilbur restated their case in the clearest possible terms: “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 us.”23
Chanute’s reply was distinctly unfriendly. While the means by which the Wrights achieved lateral control (the use of lines and cables linked to a control with which to warp the wings) was original to them, “it does not follow that it covers the general principle of warping or twisting the wings, the proposals for doing this being ancient.”
Chanute doubted that the courts would uphold the Wright patents. “Therefore it was that I told you in New York that you were making a mistake by abstaining from prize-winning contests while public curiosity is yet so keen, and by bringing suits to prevent others from doing so. This is still my opinion and I am afraid, my friend, that your usually sound judgment has been warped by the desire for great wealth.”24 Furthermore, Wilbur in his recent remarks had given the impression that Chanute had “thrust” himself upon the Wrights in 1901. He asked that the brothers be careful, in future, to mention the fact that they had initially solicited his advice.
Both brothers found the revelations contained in Chanute’s letter to be nothing short of “incredible.”
We never had the slightest ground for suspecting that when you repeatedly spoke to us in 1901 of the originality of our methods, you referred only to our methods of driving tacks, fastening wires, etc., and not to the novelty of our general systems. Neither in 1901, nor in the five years following, did you in any way intimate to us that our general system of lateral control had long been a part of the art…. Therefore it came to us with somewhat of a shock when you calmly announced that this system was already a feature of the art well known, and that you meant only the mechanical details when you referred to its novelty. If the idea was really old in the art, it is somewhat remarkable that a system so important that individual ownership of it is considered to threaten strangulation of the art was not considered worth mentioning then, nor embodied in any machine built prior to ours.25
Will brushed aside Chanute’s accusation of greed, and his complaint that the Wrights were misrepresenting their relationship with him. Just how honest had Chanute been about their relationship?
… we have also had grievances extending back as far as 1902, and on one occasion several years ago we complained to you that the impression was being spread broadcast by newspapers
that we were mere pupils and dependants of yours. You indignantly denied that you were responsible for it. When I went to France I found everywhere an impression that we had taken up aeronautical studies at your special instigation; that we obtained our first experience on one of your machines; that we were pupils of yours and put into material form a knowledge furnished by you; that you provided the funds; in short, that you furnished the science and money while we contributed a little mechanical skill, and that when success had been achieved you magnanimously stepped aside and permitted us to enjoy the rewards.26
Wilbur closed on a warmer note. The problems that were driving them apart were of long standing and would not be resolved easily. But with a bit of effort on both of their parts, they ought to be able to forge a joint statement outlining the role that Chanute had played in their work.
Unwilling to draw back or compromise, Chanute did not respond. Instead, he wrote to Spratt, describing Wilbur’s “violent letter.” “I will answer him in a few days,” Chanute commented, “but the prospects are that we will have a row. I am reluctant to engage in this, but think I am entitled to some consideration for such aid as I may have furnished.”27
When a response had still not arrived by the end of April, Wilbur wrote again—in a very different tone. He explained that his frank remarks were occasioned by a fear that serious misunderstandings were undermining a friendship that meant a great deal to him.
My brother and I do not form many intimate friendships, and do not lightly give them up. I believed that unless we could understand exactly how you felt, and you could understand how we felt, our friendship would tend to grow weaker instead of stronger. Through ignorance or thoughtlessness, each would be touching the other’s sore spots and causing unnecessary pain. We prize too highly the friendship which meant so much to us in the years of our early struggles to see it worn away by uncorrected misunderstandings, which might be corrected by a frank discussion.28
The Bishop's Boys: A Life of Wilbur and Orville Wright Page 48