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23. CHAPTER XXIII.

AMATEURS MAY USE WRIGHT PATENTS.

Owing to the fact that the Wright brothers have enjoined a number of professional aviators from using their system of control, amateurs have been slow to adopt it. They recognize its merits, and would like to use the system, but have been apprehensive that it might involve them in litigation. There is no danger of this, as will be seen by the following statement made by the Wrights:

What Wright Brothers Say.

"Any amateur, any professional who is not exhibiting for money, is at liberty to use our patented devices. We shall be glad to have them do so, and there will be no interference on our part, by legal action, or otherwise. The only men we proceed against are those who, without our permission, without even asking our consent, coolly appropriate the results of our labors and use them for the purpose of making money. Curtiss, Delagrange, Voisin, and all the rest of them who have used our devices have done so in money-making exhibitions. So long as there is any money to be made by the use of the products of our brains, we propose to have it ourselves. It is the only way in which we can get any return for the years of patient work we have given to the problem of aviation. On the other hand, any man who wants to use these devices for the purpose of pleasure, or the advancement of science, is welcome to do so, without money and without price. This is fair enough, is it not?"

Basis of the Wright Patents.

In a flying machine a normally flat aeroplane having lateral marginal portions capable of movement to different positions above or below the normal plane of the body of the aeroplane, such movement being about an axis transverse to the line of flight, whereby said lateral marginal portions may be moved to different angles relatively to the normal plane of the body of the aeroplane, so as to present to the atmosphere different angles of incidence, and means for so moving said lateral marginal portions, substantially as described.

Application of vertical struts near the ends having flexible joints.

Means for simultaneously imparting such movement to said lateral portions to different angles relatively to each other.

Refers to the movement of the lateral portions on the same side to the same angle.

Means for simultaneously moving vertical rudder so as to present to the wind that side thereof nearest the side of the aeroplane having the smallest angle of incidence.

Lateral stability is obtained by warping the end wings by moving the lever at the right hand of the operator, connection being made by wires from the lever to the wing tips. The rudder may also be curved or warped in similar manner by lever action.

Wrights Obtain an Injunction.

In January, 1910, Judge Hazel, of the United States Circuit Court, granted a preliminary injunction restraining the Herring-Curtiss Co., and Glenn H. Curtiss, from manufacturing, selling, or using for exhibition purposes the machine known as the Curtiss aeroplane. The injunction was obtained on the ground that the Curtiss

machine is an infringement upon the Wright patents in the matter of wing warping and rudder control.

It is not the purpose of the authors to discuss the subject pro or con. Such discussion would have no proper place in a volume of this kind. It is enough to say that Curtiss stoutly insists that his machine is not an infringement of the Wright patents, although Judge Hazel evidently thinks differently.

What the Judge Said.

In granting the preliminary injunction the judge said:

"Defendants claim generally that the difference in construction of their apparatus causes the equilibrium or lateral balance to be maintained and its aerial movement

secured upon an entirely different principle from that of complainant; the defendants' aeroplanes are curved, firmly attached to the stanchions and hence are incapable of twisting or turning in any direction; that the supplementary planes or so-called rudders are secured to the forward stanchion at the extreme lateral ends of the planes and are adjusted midway between the upper and lower planes with the margins extending beyond the edges; that in moving the supplementary planes equal and uniform angles of incidence are presented as distinguished from fluctuating angles of incidence. Such claimed functional effects, however, are strongly contradicted by the expert witness for complainant.

Similar to Plan of Wrights.

"Upon this contention it is sufficient to say that the affidavits for the complainant so clearly define the principle of operation of the flying machines in question that I am reasonably satisfied that there is a variableness of the angle of incidence in the machine of defendants which is produced when a supplementary plane on one side is tilted or raised and the other stimultaneously tilted or lowered. I am also satisfied that the rear rudder is turned by the operator to the side having the least angle of incidence and that such turning is done at the time the supplementary planes are raised or depressed to prevent tilting or upsetting the machine. On the papers presented I incline to the view, as already indicated, that the claims of the patent in suit should be broadly construed; and when given such construction, the elements of the Wright machine are found in defendants' machine performing the same functional result. There are dissimilarities in the defendants' structure—changes of form and strengthening of parts—which may be improvements, but such dissimilarities seem to me to have no bearing upon the means adopted to preserve the equilibrium, which means are the equivalent of the claims in suit and attain an identical result.

Variance From Patent Immaterial.

"Defendants further contend that the curved or arched surfaces of the Wright aeroplanes in commercial use are

departures from the patent, which describes `substantially flat surfaces,' and that such a construction would be wholly impracticable. The drawing, Fig. 3, however, attached to the specification, shows a curved line inward of the aeroplane with straight lateral edges, and considering such drawing with the terminology of the specification, the slight arching of the surface is not thought a material departure; at any rate, the patent in issue does not belong to the class of patents which requires narrowing to the details of construction."

"June Bug" First Infringement.

Referring to the matter of priority, the judge said:

"Indeed, no one interfered with the rights of the patentees by constructing machines similar to theirs until in July, 1908, when Curtiss exhibited a flying machine which he called the `June Bug.' He was immediately notified by the patentees that such machine with its movable surfaces at the tips of wings infringed the patent in suit, and he replied that he did not intend to publicly exhibit the machine for profit, but merely was engaged in exhibiting it for scientific purposes as a member of the Aerial Experiment Association. To this the patentees did not object. Subsequently, however, the machine, with supplementary planes placed midway between the upper and lower aeroplanes, was publicly exhibited by the defendant corporation and used by Curtiss in aerial flights for prizes and emoluments. It further appears that the defendants now threaten to continue such use for gain and profit, and to engage in the manufacture and sale of such infringing machines, thereby becoming an active rival of complainant in the business of constructing flying machines embodying the claims in suit, but such use of the infringing machines it is the duty of this court, on the papers presented, to enjoin.

"The requirements in patent causes for the issuance of an injunction pendente lite—the validity of the patent, general acquiescence by the public and infringement by the defendants—are so reasonably clear that I believe if not probable the complainant may succeed at final hearing, and therefore, status quo should be preserved and a preliminary injunction granted.

"So ordered."

Points Claimed By Curtiss.

That the Herring-Curtiss Co. will appeal is a certainty. Mr. Emerson R. Newell, counsel for the company, states its case as follows:

"The Curtiss machine has two main supporting surfaces, both of which are curved * * * and are absolutely rigid at all times and cannot be moved, warped or distorted in any manner. The front horizontal rudder is used for the steering up or down, and the rear vertical rudder is used only for steering to the right or left, in the same manner as a boat is steered by its rudder. The machine is provided at the rear with a fixed horizontal surface, which is not present in the machine of the patent, and which has a distinct advantage in the operation of defendants' machine, as will be hereafter discussed.

Does Not Warp Main Surface.

"Defendants' machine does not use the warping of the main supporting surfaces in restoring the lateral equilibrium, but has two comparatively small pivoted balancing surfaces or rudders. When one end of the machine is tipped up or down from the normal, these planes may be thrown in opposite directions by the operator, and so steer each end of the machine up or down to its normal level, at which time tension upon them is released and they are moved back by the pressure of the wind to their normal position.

Rudder Used Only For Steering.

"When defendants' balancing surfaces are moved they present equal angles of incidence to the normal rush of air and equal resistances, at each side of the machine, and there is therefore no tendency to turn around a vertical axis as is the case of the machine of the patent, consequently no reason or necessity for turning the vertical rear rudder in defendants' machine to counteract any such turning tendency. At any rate, whatever may be the theories in regard to this matter, the fact is that the operator of defendants' machine does not at any time turn his vertical rudder to counteract any turning tendency clue to the side balancing surfaces, but only uses it to steer the machine the same as a boat is steered."

Aero Club Recognizes Wrights.

The Aero Club of America has officially recognized the Wright patents. This course was taken following a conference held April 9th, 1910, participated in by William Wright and Andrew Freedman, representing the Wright Co., and the Aero Club's committee, of Philip T. Dodge, W. W. Miller, L. L. Gillespie, Wm. H. Page and Cortlandt F. Bishop.

At this meeting arrangements were made by which the Aero Club recognizes the Wright patents and will not give its section to any open meet where the promoters thereof have not secured a license from the Wright Company.

The substance of the agreement was that the Aero Club of America recognizes the rights of the owners of the Wright patents under the decisions of the Federal courts and refuses to countenance the infringement of those patents as long as these decisions remain in force.

In the meantime, in order to encourage aviation, both at home and abroad, and in order to permit foreign

aviators to take part in aviation contests in this country it was agreed that the Aero Club of America, as the American representative of the International Aeronautic Federation, should approve only such public contests as may be licensed by the Wright Company and that the Wright Company, on the other hand, should encourage the holding of open meets or contests wherever approved as aforesaid by the Aero Club of America by granting licenses to promoters who make satisfactory arrangements with the company for its compensation for the use of its patents. At such licensed meet any machine of any make may participate freely without securing any further license or permit. The details and terms of all meets will be arranged by the committee having in charge the interests of both organizations.