Now, I dislike greedy, counter-productive litigation as much as the next person (especially if the next person happens to be X-Plane’s Austin Meyer), and I’ve always been somewhat troubled by the Wright Brothers’ aggressive patent actions around “their invention” of the aileron.
So I was very intrigued to find the following article in the November 4th, 1911 issue of Flight magazine. . .
Two Interesting Patents
Concerning the problem of lateral balance, which has in the past formed the theme of much discussion and even litigation, the accompanying extracts from patents taken out in 1868 and 1870, brought to our notice by that eminent pioneer in research, J. W. Dunne, are interesting in that they indicate how this problem was regarded in those days.
Boulton (1868)
The first of these extracts is taken from a patent granted to Matthew Piers Watt Boulton in 1868.
It has reference to the maintenance of side balance by the employment of planes rotatable about horizontal axes situated at the ends of the main supporting surfaces, a method closely analogous to that adopted on Curtiss biplanes of the present day.
Harte’s Balancers (1870)
The other patent was taken out by Richard Harte in 1870. In his specification he proposed an aeroplane propelled by a screw, in which the supporting surfaces did not move relative to the other parts of the machine.
His balancers, except in the method by which they are operated, were very similar to the ailerons or hinged flaps that are employed today.
At the end and back or hinder part of each wing is a flap which moves up and down upon a hinge in the back edge of wing. This hinge is prolonged in the shape of a rod, and this rod is in connection with a lever, by means of which the flap is made to rise above or fall below the rest of the surface of the wing, this lever being in connection with a second lever which is within reach of the person who steers the machine.
Referring to the operation of these flaps, Harte makes the following observation:
When both flaps are depressed the machine will descend. When both are equally raised it will ascend, and when both are raised, but unequally, the machine will make a curve towards the side on which the flap is most raised.
In other words, all the energy of early American aviation could have been better directed if the US Patent office had simply consulted with their British counterparts. (Or if someone in Britain had mailed a few crucial documents to the U.S..
Broad brushstrokes
Patent officials always seem to tar with a very broad brush, and the Wrights’ 1908 application to patent a “…means for regulating lateral balance by the use of horizontal surfaces adjustable to different angles of incidence on the right and left sides of the centre of the machine”1 could even place birds’ tails in legal jeopardy.
Glenn Curtiss’ lawyers once quipped that if someone jumped in the air and waved his arms, the Wrights would sue!2
Still, in 1910, US Courts found for the Wright brothers in cases against both Glenn Curtiss and Louis Paulhan (flying a Farman).
In the Paulhan case, Judge Hand, of the United States Circuit Court, Southern District of New York gave the Wrights absolute primacy in his summing up, saying “…I cannot find that anyone prior to their patent had flown with the patented system…”3
Was he making practical employment a fundamental principal of patent law? I can hear aerospace lawyers around the world scrambling for their briefcases and heart pills over that precedent!
What happened in the end would be even more instructive.
Futile, needless and baseless
Whether the Wrights’ vigorous defence of their patents did much to inhibit the development of airplanes in the U.S. is debatable. They certainly didn’t stop a small army of pre-War pioneers, including Glenn Curtiss, Glenn L Martin, Clyde Cessna and countless others.
But their efforts were nothing compared to Europe – where flying experimentation, popularisation and commercialisation fairly exploded into a dynamic new industry. And there, Henri Farman had attached hinged ailerons to the trailing edges of his Farman III in April 1909, while Louis Bleriot had fitted opposing winglets on his revolutionary Bleriot VIII in 1908.
Alexander Graham Bell and his Aerial Experiment Association used similar devices on the wing tips of the ‘June Bug’, as flown by Glenn Curtiss from May 1908. The AEA had even been awarded Patent 1,011,106 (filed April 8th, 1909) for “…a pair of lateral balancing rudders …and a means for simultaneously adjusting one to a positive and the other to a negative angle of incidence. . .”4
No-one seemed to have noticed the obvious conflict with the Wrights’ pre-existing patent applications.
Back to sanity
Small wonder that Paulhan packed up in disgust, and returned to the more open air of France – while the Wrights continued to level lawsuits against plane makers on both sides of the Atlantic with limited success. They hurt their reputation as much as anything.
And with each passing year, the universal use of ailerons and wing-warping saw the chances of successful litigation shrink proportionately for the Wrights. Soon after, the rise of aviation in World War One nailed the courthouse door shut.
In 1917 the US government settled the matter by enforcing a patent pool to free up the domestic aircraft industry for war production, and the issue was never taken up again.
The Wright brothers – and everyone else, for that matter – finally had to accept that the aileron was irretrievably in the public domain.
Ironically, it had been that way since before the whole thing began.
Want to see more?
Read the full article from Flight here: Flight Nov 4, 1911
1. Wright brothers’ US Patent 1,122,348; filed February 17th, 1908; confirmed December 29th, 1914.
2. Wikipedia, Wright brothers patent war .
4. AEA “June Bug” US Patent 1,011,106; filed April 8th, 1909; confirmed December 5th, 1911.
There’s also this article from Air&Space magazine, September 2008.
airscape Magazine 
Fascinating reading. I love the way they used to say something simple like ‘turn’ in a dozen words.
Yeah, like how Apple needs a dozen pages to say something simple like ‘Your life belongs to us now.’
😉 I can’t help thinking all that verbage did more to aggravate the confusion than clarify it. Some things never change!
I’m not sure if it’s refreshing or just depressing to realize that litigation has been putting a lid on the growth of general aviation since day one. At least the market in Europe was free at the turn of the 20th century. I suppose it was here as well, as long as you stayed under the radar. These days the high cost and constant threat of legal action keep potential aviators on the ground worldwide, and there’s no hiding from lawyers and regulators both private and governmental.
The optimist in me says the legal threats have always been there, and look how far we’ve gotten anyway. But thank goodness for the Atlantic Ocean! The ‘constant threat’ of litigation is often just that – a threat; lawyers scaring people into hiring more lawyers… The Louis Paulhan case is a great example. The Wright’s dogged him with injunctions all the way across the US, from LA to Belmont Park. He was just so wealthy (and so French!) that he shrugged and flew anyway.*
*Try this at your own risk, of course. (Ironic use of disclaimer…)