The Patent Litigation Begins

Along with his refusal to pay royalties, the pub­licity and success that Curtiss was obviously attaining was too much for the Wrights to bear, so they filed their first patent infringement law­suit against Curtiss and the Herring-Curtiss Com­pany in August 1909. Curtiss had formed the Herring-Curtiss Company with Augustus M. Herring in March 1909, primarily on the strength of Herring’s representations of having a patent for the airplane that preceded that of the Wrights, and further of having been extensively associated with Octave Chanute and Samuel J. Langley in their aeronautical experiments. It soon turned out that Herring possessed no patent, but Curtiss still refused to pay royalties to the Wrights. So did many other aviators. Few people could believe that the two brothers owned, to the exclusion of everyone else in the world, the right to fly.

The Curtiss litigation was only one of many lawsuits the Wrights had filed against purported patent infringers. The Wrights sued the Aero­nautic Society of New York. They sued this one and then that one, in the United States and in the courts of Europe, including England, France, and Germany. Judgment was ultimately entered in over 30 lawsuits brought by the Wrights. The Wrights’ attention had turned completely away from the excitement of flying that now gripped the European and American aviation commu­nity. Their concentration was on litigation. They set up a corporation to own and manage their patent and to prevent any competition through litigation. They were consumed with the com­mercial exploitation of their airplane, but they were being left behind as the aeronautical world flew on.

Most of those who had been active in the small fraternity of aeronauts were appalled by the Wrights’ actions. Octave Chanute, who had so openly shared the results of his experi­mentation in gliding and airfoils (which had been adopted by the Wrights in large measure), was highly critical of the Wrights and publicly rebuked their patent litigation. Perhaps the best illustration of the public feeling at the time was expressed in the Evansville (Illinois) Courier of December 2, 1909:

«For the purpose of controlling abso­lutely in this country and Canada all aviation by means of heavier-than – air machines, the Wright Company, backed by financiers controlling probably nearly a billion dollars, was formed several days ago. The men behind the latest, The Flying Machine Trust, are nearly all prominent in financial and trust affairs. The capital of the company is modestly placed at $1,000,000, and it is announced that there is no stock for sale. The com­pany, which has been formed to take over all of the Wrights’ patents and to prosecute infringements, claims as an asset even the principle of the plane and the control of the equilibrium of the machine.4»»

The Wrights’ suit against Curtiss resulted in the first court decision on the patent issue in January 1910. The federal court in the Western District of New York found that Curtiss had, indeed, violated the Wright patent. Although the Wright machines used wing “warping,” and Cur­tiss used “ailerons” to accomplish lateral control, the court ruled that the Wrights’ discovery of a workable means for achieving lateral equilibrium or balance was what was protected under the pat­ent, not the method for achieving it. Thus, the dissimilarities between wing warping control and aileron control to produce lift differential of the wings “had no bearing upon the means adopted to preserve equilibrium.”5 Curtiss immediately appealed the decision, posted a bond to super­sede the judgment, and then went back to work.

He moved forward energetically in many areas, innovating, testing, and improving his machines. He agreed to participate in an air meet in Los Angeles at the beginning of 1910, the first such major event in the United States. Although the Wrights did not compete in the event, they were there to try to shut it down. Louis Paulhan, the French aeronaut and early aviation record holder, was greeted upon his arrival by Wright lawyers serving a patent infringement suit and complaint for an
injunction to prevent anyone from flying. The event ran, nevertheless, from January 10 to Jan­uary 20 and was attended by 254,000 spectators. The Los Angeles Times said it was one of the greatest public events in the history of the west. Even the federal courts must have thought so, as no injunctions were issued.

Curtiss won $6,600 in prize money in the categories of fastest speed, endurance, and quick starting and set a new air speed record of 55 mph. From Los Angeles he traveled east and accepted the challenge issued by New York World publisher, Joseph Pulitzer, to compete for the first successful flight between New York City and Albany, New York. The challenge carried with its successful conclusion a $10,000 prize for completion of the 152-mile distance, which allowed two landings en route and completion within a period of 24 hours. Curtiss chose to fly down the Hudson River from Albany, success­fully completing the competition requirements on May 29, 1910. It was the first official cross­country airplane flight in the United States.

In July 1910, six months after the trial court ruling in the Curtiss case, the Court of Appeals of New York reversed the trial court and sent the case back for further evidentiary hearings at the
trial level, effectively putting the parties to the litigation back where they had started.