by Seth Shulman
Even as Curtiss tries to extricate himself from his business ties with Herring, he must contend with the much larger and more vexing problem of the Wrights’ lawsuit. It seems inexplicable to Curtiss that his airplanes—with their rigid wings and ailerons—could be thought to infringe a patent that specifies the flexing of an airplane’s wings in conjunction with the use of the rudder for lateral control. If the Wrights had conceived of ailerons themselves, Curtiss reasons, they would have explicitly incorporated the design into their patent.
Nonetheless, Curtiss knows that the technological complexity of the Wrights’ case will make it difficult to successfully defend himself in court. And he cannot ignore the fact that the Wrights, represented by a top patent lawyer, seem determined to punish him for entering the field of aviation they had hoped to control alone.
Curtiss knows he needs the best advice he can find. Bell is encouraging and supportive, but, understandably, he is hopelessly partisan on the subject of ailerons. Meanwhile, Curtiss has agreed to demonstrate his airplane at an exhibition in St. Louis. Much ballyhooed, it will be the first demonstration west of the Mississippi of an airplane in flight. So after just a brief stay in Hammondsport, he takes Lena with him on the road. The flight is a tremendous success and, to celebrate, the two buy a big, new Chalmers-Detroit automobile to drive home. On the way, Curtiss arranges to visit Octave Chanute at his Chicago home. As perhaps the world’s leading authority on aviation history, Chanute has intimate knowledge of the Wrights’ aircraft and their process of invention leading up to it.
The visit with the venerable Chanute, now seventy-seven years of age, is both edifying and heartening. “I spent two evenings in Chicago with Dr. Chanute,” Curtiss writes Bell confidently, “and from what he says the Wrights have little chance of winning.”
Following Curtiss’s visit, Octave Chanute issues his views publicly on the matter of Wright v. Curtiss. The Wrights, he says, are not the first to incorporate the concept of warping an aircraft’s wings. “On the contrary,” Chanute writes, many inventors have developed the notion since the time of Leonardo da Vinci. “Two or three,” he says, “have actually accomplished short glides with that basic warping idea embodied in their machines.”
Among these inventors, Chanute cites the work of his French colleague Jean-Pierre Mouillard. According to Chanute, in 1898 in Egypt, Mouillard successfully tested a glider that employed wing warping. With Chanute’s help, Mouillard patented the device in the United States but never developed the idea further because he suffered a stroke and died shortly after its invention.
Furthermore, Chanute argues, the Wrights’ design owes a heavy debt to his own work and that of many others. As he notes, “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.” Chanute made all his data freely available to them. “I was glad,” he writes, “that someone wanted to continue the work.”
Chanute is clearly angered to see the Wrights now seeking to “shut off” the work of others. “Public competition,” he writes emphatically, will best serve the field of aviation. This conviction offers Chanute’s ultimate testament on the matter; he dies within the year.
Even if the patent office and the courts judge the Wrights’ wing-warping patent to be a wholly novel invention, Curtiss feels buoyed by a growing body of analysis that considers ailerons to be outside the scope of the Wrights’ patent. Most notably, Thomas A. Hill, a prominent New York patent attorney who studied the Wrights’ patent on behalf of the Aeronautical Society, argues persuasively in the October 1909 issue of Aeronautics, the society’s journal, that ailerons fall outside the Wright claims.
Curtiss’s design, Hill explains, may produce an effect similar to that of the Wright brothers’ airplane, but it only does so through the use of pivotally mounted “supplemental or auxiliary surfaces, planes or rudders.” It is, he notes plainly, impossible to flex, warp, or otherwise bend or move the main surface on a Curtiss aircraft.
As Hill sees it, nothing in the Wright patent suggests “that they at any time intended to use supplemental surfaces for accomplishing substantially what they accomplish by warping, flexing, bending, twisting, or otherwise distorting the lateral margins of their main plane.” The omission, he concludes, casts doubt on the Wrights’ chances of success in their lawsuit.
The opinions of such distinguished experts as Hill and Chanute bolster Curtiss’s confidence. But he soon learns one exceedingly disturbing fact: his case will be heard by a judge notorious for his predilection for expansive patent interpretations.
It is a very unlucky and fateful piece of news indeed.
Judge John Raymond Hazel, appointed to the federal bench in 1900, brought relatively little legal experience to the job. His nomination was widely criticized as political payback for his work on behalf of President McKinley’s Republican Party. Almost immediately after his appointment, the controversial Hazel presided over one of the biggest patent battles of the day: a fight over the invention of the automobile. His handling of that lawsuit would earn him a good deal of notoriety.
In the case, George Selden, a lawyer and part-time inventor from Rochester, New York, had built a rudimentary three-cylinder engine in 1878. Selden never perfected the motor but he recognized the possibility that it might be used in a “horseless carriage”—a quest akin to the Holy Grail for many inventors near the turn of the century. Selden never actually built such a vehicle. He never even tried. He was, however, indisputably the first to apply for a U.S. patent on the notion of using a gasoline engine to propel a carriage—an invention that would, of course, come to be called an automobile.
He may not have been much of an inventor, but Selden was an accomplished patent lawyer and he managed to secure U.S. Patent No. 549,160 for his “road engine.” Then, he cleverly nurtured along his patent in a “pending” status—a cunning but legal abuse of the rules of his day. Repeatedly amending his application slightly every two years as the rules generously allowed, he thereby dragged out his proprietary claim for more than a decade before it went into effect, waiting in a kind of legalistic ambush until someone actually did invent an automobile.
Sure enough, Selden’s plan worked. He allowed his patent to come into force in 1895 after he saw actual automobile designs start to emerge on the horizon. Before long, he had forced nine fledgling automobile manufacturers to pay a royalty of 1.25 percent of the retail price of each automobile they sold for the right to use the Selden patent. Casting aside the fact that countless inventors had foreseen the possibility of an automobile, Selden had the U.S. government’s imprimatur. The idea for the automobile belonged to him, he believed, and he had the patent to prove it. By 1906, Selden was receiving royalties from almost every automobile maker in the United States.
Around this time, when Henry Ford set out to manufacture automobiles, he too was initially willing to pony up his royalty fee. But, branding him as a mere “assembler” of cars (and doubtless scared that he might undersell existing makers), Selden and the association he had set up to handle the patent refused to grant Ford a license, using the patent—as was technically their legal right—to block him from selling cars entirely. The move, needless to say, brought out Ford’s fighting ire.
Ford went to court to challenge what he saw as not just a bad patent but a broken system. He lambasted Selden’s claim, calling it “worthless as a patent and worthless as a device.” Unfortunately for him, however, it was Judge Hazel who heard Ford’s case. Undeterred by the vague and flimsy nature of Selden’s claim, Hazel upheld Selden’s patent, ruling that, as the first in its field, it deserved an expansive interpretation.
After a costly and well-publicized struggle that dragged on for years, the federal appeals court eventually overturned Hazel’s verdict, ultimately agreeing with Ford’s lawyer that Selden had disclosed “absolutely nothing” of social value in his patent. But the hard-fought case left Ford bitter despite the victory, with an abiding
distrust of monopolistic power and, not surprisingly, more than a passing interest in Curtiss’s plight.
Before Curtiss’s ordeal was through, Ford would offer his assistance. As one story goes, while Curtiss was dining with his associate Lyman Seely one afternoon in the Brevoort Hotel in New York, a trim, white-haired man left his own party and came to Curtiss’s table. He offered to help in any way he could in Curtiss’s lawsuit, then walked back to his table almost before Curtiss had a chance to thank him.
Curtiss didn’t know whether to be grateful or ashamed that his situation was so pathetic as to warrant the pity of complete strangers. While he never imagined he would pursue the matter, Curtiss asked Seely if he knew the man who had just offered his assistance.
“You’re joking, aren’t you?” Seely replied. “Surely you recognized Henry Ford.”
In the matter of Wright v. Curtiss, Judge Hazel wastes little time. On January 3, 1910, he grants the Wright brothers the preliminary injunction they seek. The decision prohibits Curtiss from selling or exhibiting his airplanes. And it stuns almost every player in the youthful aviation field on both sides of the Atlantic.
For Curtiss it is a terrible blow. He learns of the injunction while readying his plane for the first international air meet in America—the “Air Tournament of Los Angeles”—beginning January 10, 1910. He recognizes immediately how bad the news is. Even though the case has yet to be tried on its merits, the judge has nonetheless deemed the Wrights claim strong enough to justify halting Curtiss’s operation immediately.
On the eve of the Los Angeles event, the organizers worry whether Hazel’s injunction might prohibit Curtiss’s flight at an aviation meet. The press speculates that the Wrights might even try to shut the meet down entirely to ground the many “infringing” non-Wright aircraft on the program. To mollify the nervous organizers, Curtiss explains that he will not, strictly speaking, be making an exhibition for money so the event should not pose a problem. He offers to post a bond pending his appeal of the injunction, and the organizers agree to let him participate.
Curtiss approaches the problem like the mechanically minded inventor he is. From his perspective, his airplanes’ aileron system of lateral control has one difference from wing warping that is so glaring, it alone should turn the case in his favor. The way the Wrights’ patent is written, their wing-warping system is tied into their airplane’s rudder. When the wings are twisted, the Wright aircraft tends to turn. The Wrights correct for this tendency by wiring the rudder to turn slightly in the opposite direction whenever the wings are warped for lateral control.
Curtiss’s aileron system is completely independent of the airplane’s rudder. If he can simply demonstrate this, Curtiss figures, Judge Hazel will surely have to overturn the injunction. There at the meet in Los Angeles, Curtiss hatches a plan to publicly prove his point. And he announces it to the reporters assembled to cover the meet:
“In the arguments of their lawyers,” Curtiss says, the Wrights have convinced Judge Hazel “that my machines depend on the vertical rudder to maintain equilibrium.” In the Wrights’ airplanes, he says, “the warping surface of the planes gives the machines a turning tendency which the rudder has to overcome.” On the contrary, he says, “the rudders on the Curtiss machines have no such function.” And, he says, he will prove his point with a demonstration.
Following the announcement, Curtiss, along with two other pilots flying Curtiss airplanes at the meet, set out to disprove the Wrights’ claim. Immobilizing their airplanes’ rudders, they each make straightaway flights before thousands of spectators. On each flight, the pilots move the ailerons vigorously back and forth, causing the airplanes to rock laterally like a boat buffeted broadside by strong waves. And on each flight, as corroborated by a host of expert observers, the planes display no turning tendency whatsoever from the use of the ailerons alone.
Much to Curtiss’s chagrin, the spectacle does nothing to sway Judge Hazel. It does, however, become yet more fodder in the increasingly acrimonious case. According to the Wrights, Curtiss’s claim is technically wrong and runs counter to their superior understanding of “the unchangeable laws of nature.” Ailerons, they say, like wing warping, cause a turning effect that needs to be corrected by the airplane’s rudder. In an affidavit, they charge that Curtiss’s demonstration in Los Angeles only shows “his incompetence to give expert testimony as to what actually occurs on his machine, and even seems to raise a direct question of veracity.”
Curtiss counters that his claim is based upon a fact witnessed by scores of knowledgeable observers. And, he adds tartly, “the actual facts are, I understand, the crux of the matter, and not the theories which may be advanced.”
The truth, doubtless fully understood by neither party, is that the matter of whether ailerons cause a turning effect is an exceedingly complex aeronautical question that depends on many factors, including the aircraft’s speed and prevailing wind conditions. But Curtiss is technically accurate on the main point: that ailerons can function completely independently of the rudder as the system for an airplane’s lateral control, unlike the patented design of the early Wright Flyer.
In any event, the argument is far beyond the capacity of Judge Hazel to adjudicate. Even more important, it is far afield from the real heart of the issues at stake, namely, what kind of exclusive claim should an inventor deserve for his or her seminal idea and how broadly should that claim be construed? Did Selden’s half-baked, unrealized brainstorm entitle him to decades’ worth of royalties from all car manufacturers? And, if not, what should the Wrights be entitled to for their early-but-incomplete insights about the lateral control of an airplane?
Even before the lawsuit had officially gotten under way, Curtiss wrote the Wrights expressing his hope that the dispute between them could be settled discreetly and amicably. “I suggest,” he wrote, “that the matter be taken up privately between us to save if possible annoyance and publicity of lawsuits and trial.”
But the Wright brothers are bitter and obstinate. An invention they alone nurtured secretly for years is now advancing at a breakneck pace and, to them, the situation is intolerable. All they can think to do is to try to stop the interlopers.
It is hard to understand the Wrights’ motivation in pursuing such a litigious path. Perhaps the root cause of their obstructionist stance is nothing more than an issue of control. As Wilbur laments in a letter shortly before his death, “It is always easier to deal with things than with men.” But, whether the Wrights like it or not, the flying machine has burst out of the workshop and into the sky. From now on, it is destined to be adapted and perfected by an impetuous and driven array of inventors around the world.
Grover Loening, close associate of the Wrights, claims in his memoirs that their battle against Curtiss boiled down to nothing more for them than a consuming fight “for revenge and prestige.”
In any event, the Wrights were motivated by more than money. After all, by 1910, the Wrights have become wealthy from the airplane. They have successfully sold their aircraft to the Army and to professional pilots, and they have received payments from licensed manufacturers around the world. By November 1910, the Wrights’ company is incorporated with $1 million in capital from Wall Street investors. The new company even buys the all-important wing-warping patent from the Wrights for an additional $100,000. Yet, even with this windfall, Wilbur, the new company’s president, continues battling in the courts.
Curtiss is the Wrights’ prime target in their desperate fight to own the skies, but he is by no means the only one. When the colorful French pilot Louis Paulhan comes to the United States to fly in the 1910 Los Angeles air meet, for instance, the Wrights’ attorneys meet him as soon as he steps off the boat in New York. The lawyers put him on official notice that the Wrights are seeking to legally enjoin him from flying in the United States. Not surprisingly, the Wrights’ dramatic lawsuit spawns an outpouring of editorial sympathy for Paulhan. Newspapers in the United States and abroad express outra
ge that the country should greet a guest to an international air meet in such a manner.
Paulhan does fly in the Los Angeles meet on January 10, 1910, but the Wrights’ injunction against him puts a stop to his plans to tour the country making demonstration flights before paying audiences. In an arrangement with a promoter, Paulhan’s flights had been publicized across the country from San Francisco to St. Louis. Paulhan had even been guaranteed an unprecedented fee of $24,000 per month for his performances. In classic French style, he had brought with him no fewer than four airplanes (two Farman biplanes and two Bleriot monoplanes) and an entourage including his wife, two assistant pilots, and five mechanics.
Sometime after the Los Angeles meet, when he receives word that the Wrights have won the injunction against him in U.S. district court, Paulhan clenches his fists and curses the brothers roundly in his native French. Only slightly more demurely, to reporters, he calls the Wrights “birds of prey.”
Psychologically, at least, Curtiss benefits from the growing anti-Wright sentiment. Members of both the U.S. Congress and the Justice Department begin to discuss the prospect of putting an end to the “air trust.” Fearing the effect on the new industry, the Aero Club of America—still the leading group of aviation aficionados of the day—floats the idea that they might purchase the U.S. rights to the Wright patent and dedicate it to the public domain. But the Wrights’ Wall Street backing is predicated largely on the promise of a monopoly on aviation, and the Wrights show little enthusiasm for the plan.
Around this time, a newspaper cartoon appears in a number of newspapers. In it, the Wright brothers stand side by side on the ground sneering and shaking their fists at an airplane above them. The caption reads: “Keep out of my air!” This kind of widespread outrage at the Wrights can’t help but offer Curtiss some consolation as he struggles as a prime casualty of their wrath. But it does little to overcome the dire nature of his immediate circumstances.