Wright Co. v. Herring-Curtiss Co.

• Decision Date: 21 February 1913
• Docket Number: 400.
• Citation: 204 F. 597
• Parties: WRIGHT CO. v. HERRING-CURTISS CO. et al.
• Court: U.S. District Court — Western District of New York

204 F. 597

WRIGHT CO. v. HERRING-CURTISS CO. et al.

No. 400.

United States District Court, W.D. New York.

February 21, 1913

H. A Toulmin, of Dayton, Ohio (Frederick P. Fish and Edmund Wetmore, both of New York City, of counsel), for complainant.

Emerson R. Newell, of New York City (J. Edgar Bull, of New York City of counsel), for defendants.

HAZEL District Judge.

This bill in equity relates to the infringement of United States letters patent granted May 22, 1906, to Orville and Wilbur Wright on application for patent field March 23, 1903, for improvements in flying machines, or, in other words, for a structure commonly known as an aeroplane. At this date, owing to articles in daily papers and periodicals with regard to notable flights in this country and abroad by the late Wilbur Wright, Orville Wright defendant Glenn H. Curtiss, and other venturesome aviators, the aeroplane and the modus operandi thereof are reasonably familiar to the intelligent public. That such structures are supported in their flight by the reaction of the air against an inclined surface, and that the advancing air presses against the plane surfaces, thereby inclining them to rise, while at the same time a resistance to forward motion is encountered, which is overcome by the propelling motor, are facts now reasonably familiar to us.

By those who early studied the art the fundamental physical principles involved in the flight of a plane heavier than air, when advancing against the wind or currents of air, were well recognized. That a plane descending in response to the force of gravity naturally inclined in a forward direction, and that the air resisted its forward descent in proportion to the exposed surface of the plane, were matters thoroughly understood by those who were interested in the subject. This knowledge eventuated in the structures for aerial flying shown in the exhibit publications and in the Wright patent in suit. The objects of the latter, according to the specification, are:

'To provide means for maintaining or restoring the equilibrium or lateral balance of the apparatus, to provide means for guiding the machine both vertically and horizontally, and to provide a structure combining lightness, strength, convenience of construction, and certain other advantages which will hereinafter appear.'

There are 18 claims in the patent; but claims 3, 7, 14, and 15 only are infringed, and they read as follows:

'3. 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, and also to different angles relatively to each other, so as to present to the atmosphere different angles of incidence, and means for simultaneously imparting such movement to said lateral marginal portions, substantially as described.'

'7. In a flying machine, the combination with an aeroplane, and means for simultaneously moving the lateral portions thereof into different angular relations to the normal plane of the body of the aeroplane and to each other, so as to present to the atmosphere different angles of incidence, of a vertical rudder, and means whereby said rudder is caused to present to the wind that side thereof nearest the side of the aeroplane having the smaller angle of incidence and offering the least resistance to the atmosphere, substantially as described.'

'14. A flying machine comprising superposed connected aeroplanes, means for moving the opposite lateral portions of said aeroplane to different angles to the normal planes thereof, a vertical rudder, means for moving said vertical rudder toward that side of the machine presenting the smaller angle of incidence and the least resistance to the atmosphere, and a horizontal rudder provided with means for presenting its upper or under surface to the resistance of the atmosphere, substantially as described.

'15. A flying machine comprising superposed connected aeroplanes, means for moving the opposite lateral portions of said aeroplanes to different angles to the normal planes thereof, a vertical rudder, means for moving said vertical rudder toward that side of the machine presenting the smaller angle of incidence and the least resistance to the atmosphere, and a horizontal rudder provided with means for presenting its upper or under surface to the resistance of the atmosphere, said vertical rudder being located at the rear of the machine and said horizontal rudder at the front of the machine, substantially as described.'

The following is a perspective view of the Wright machine:

(Image Omitted)

The defenses are: (1) That the patent is not entitled to a broad construction; (2) that, if it is broadly construed, it is invalid in view of the prior art; (3) that, if properly construed as to its scope, the defendants do not infringe; and (4) that in any event defendants' mode of flying is on a different principle from complainant's.

The record is replete with publications and oral testimony showing that the principal obstacle to the use of the aeroplane before the invention in suit was the inability to maintain lateral balance, due to disturbing aerial forces which swerved the aeroplane from its intended course. Indeed, this was the perplexing problem upon which human flight depended and the one with which the patentees had to cope. The specification says:

'In flying machines of the character to which this invention relates the apparatus is supported in the air by reason of the contact between the air and the under surface of one or more aeroplanes, the contact-surface being presented at a small angle of incidence to the air. The relative movements of the air and aeroplane may be derived from the motion of the air in the form of wind blowing in the direction opposite to that in which the apparatus is traveling, or by a combined downward and forward movement of the machine, as in starting from an elevated position, or by combination of these two things, and in either case the operation is that of a soaring machine, while power applied to the machine to propel it positively forward will cause the air to support the machine in a similar manner.'

Much, indeed, prior to the Wright patent, had been written on the subject of aerial machinery by Prof. Langley, of the Smithsonian Institute, Octave Chanute, and others, and there were a number of patents in this country and in foreign countries disclosing diligent and painstaking efforts by inventors to achieve success in aerial navigation with heavier than air machines; but all such efforts for one reason or another were abortive, and the intentions of the inventors and experimenters miscarried. The prior art taught that Langley, Lilienthal, Chanute, Maxim, and others had faithfully endeavored to solve the difficulties and remedy the imperfections in apparatus. Flying machines of various kinds had previously been built, but no one had flown save a few, Chanute in this country, and Lilienthal and Pilcher abroad, who were engaged in experimentation.

In this situation the patentees conceived the idea of hinging dihedral planes to supports at their front and rear margins, with flexible joints to permit warping or tilting them at their extreme lateral ends by the use of suitable levers to impart to the aeroplane surface a helicoidal twist. On this point the specification says:

'We prefer this construction and mode of operation for the reason that it gives a gradually increasing angle to the body of each aeroplane from the central longitudinal line thereof outward to the margin, thus giving a continuous surface on each side of the machine, which has a gradually increasing or decreasing angle of incidence from the center of the machine to either side. We wish it to be understood, however, that our invention is not limited to this particular construction, since any construction whereby the angular relations of the lateral margins of the aeroplanes may be varied in opposite directions with respect to the normal planes of said aeroplanes comes within the scope of our invention.'

It was believed in the beginning that, by warping or depressing the margins of the supporting planes at opposite ends, the aeroplane could be controlled in its movements and its equilibrium maintained in flying, and the proofs show that in their earlier efforts the inventors did not design to use either a horizontal rudder in front of the machine or a vertical rudder at the rear; but later, before the application for patent was filed, these instrumentalities were added. The movable vertical rudder or tail exerts a retarding influence on the side of the machine, which in flying has a tendency to move ahead of the opposite side, and thus assists the wings or marginal ends in keeping the aeroplane properly balanced.

Means were provided for increasing or decreasing the angle of incidence to restore lateral balance, such means consisting of a rope attached both to the vertical rudder and to the wings or margins, which enabled the aviator, lying in the cradle, to operate by the motion of his body both instrumentalities for maintaining the equilibrium of the apparatus. In the estimation of the Wright brothers the machine was prevented from turning on its vertical axis by the adaptation of the movable vertical rudder as an auxiliary to the warping planes or ailerons as described in the specification, and by the conjoint use of such parts they were able to fly, steering in either direction, and to restore and retain equilibrium.

To induce a...