Lawrence Goldstone:The Wright Brothers and a Patent-Law Dogfight Then as Now, Wrangling Over Trying to Control a Market Undermined the Drive for Innovation.
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In something of an irony, the patent system, designed specifically to promote and protect innovation, has never been particularly adept in dealing with new technologies. The federal courts are now awash in patent-infringement suits that they seem to have little real notion of how to resolve, and the Supreme Court is grappling with an appeal that may or may not define the extent to which a patent can protect software.
It might be instructive, then, to see how the patent system functioned with regard to a previous watershed moment in technological innovation: flight.
On Dec. 17, 1903, Orville and Wilbur Wright successfully flew an airplane over the windswept dunes of Kitty Hawk, N.C., but few people realize that for the next four years the Wright brothers refused to publicly demonstrate their miraculous machine. Before sharing their invention with the world, they wanted to be certain that they had secured a patent that would cover the very notion of controlled flight itself. Their intention—about which they were utterly candid—was to collect royalties on every airplane produced.
Then as now, the patent system the Wrights encountered was a bureaucratic labyrinth. In 1898, the Supreme Court profoundly changed the law by introducing a special category called the “pioneer patent.” In Westinghouse v. Boyden Power Brake Co., Justice Henry Billings Brown —the author of the “separate but equal” decision in Plessy v. Ferguson in 1896—wrote that “a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art . . . is entitled to a broad range of equivalents.” It was under that open-door interpretation that the Wrights filed for their patent.
It wasn’t long before other inventors, most notably Glenn Curtiss, developed a means for controlling an airplane that was superior to the Wrights’ pulley-and-cable system of “wing warping.” Wilbur and Orville, who had the backing of a potent consortium of investors, including Cornelius Vanderbilt, August Belmont and Howard Gould, brought suit in 1909 against Curtiss and numerous other airplane designers for patent infringement.
Curtiss laughed off the suit, insisting that his lever-based means of control—ailerons—was removed from and superior to the Wrights’ method. Curtiss continued to produce airplanes, incorporating a dizzying series of innovations, including wheeled landing gear, steering wheels and a way for airplanes to take off and land on the decks of ships.
When the Wright Co. was formed in 1909, its investors structured the organization to make sure that Wilbur stayed in the workshop and out of the boardroom. But the patent fight obsessed him, and he ceased working on improving the company’s product.
By 1912, Wilbur was near collapse, spending virtually every moment giving or reviewing depositions, testifying or micromanaging the legal team assembled to press the Wrights’ suit. In May of that year, he contracted typhoid fever; he never recovered. In newspaper interviews, Orville insisted that his brother’s nervous exhaustion had left him unable to ward off the infection that killed him. He accused Curtiss of being the cause.
But Orville might as well have blamed the patent system. If patents had been more restrictive, if the Wrights could not have had the carrot of monopoly dangled in front of their noses, they would have been forced to continue to innovate, to apply their awesome scientific instincts to bettering their invention instead of merely defending it. In January 1912, Wilbur himself wrote to a friend in Europe that he regretted leaving the workshop for the courtroom, and he wondered how far he might have pushed the boundaries of aviation had he not lost himself in the morass of the legal system.
In a final twist, the year after Wilbur died, the Wrights won their suit against Curtiss. But they never collected a penny in damages. In 1915, Orville sold his interest in the Wright Co. and left the aviation business. Glenn Curtiss continued to innovate, build airplanes and thrive.
Nowadays, both the number and the nature of lawsuits involving software, hardware and even design minutia are testament that patent law remains the damper on innovation that it was when airplane development was nearly grounded in its infancy.
Mr. Goldstone is the author of “Birdmen: The Wright Brothers, Glenn Curtiss and the Battle to Control the Skies,” forthcoming from Ballantine.
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