Wright Co. v. Herring-Curtiss Co.

• Citation: 211 F. 654
• Decision Date: 13 January 1914
• Docket Number: 78.
• Parties: WRIGHT CO. v. HERRING-CURTISS CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

211 F. 654

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

No. 78.

United States Court of Appeals, Second Circuit.

January 13, 1914

E. R. Newell and J. Edgar Bull, both of New York City, for appellants.

H. A. Toulmin, of Dayton, Ohio, and F. P. Fish, of New York City, for appellee.

Before LACOMBE, COXE, and WARD, Circuit Judges.

PER CURIAM.

The questions presented in this case have already been fully discussed. In the case at bar Judge Hazel wrote an opinion, upon granting preliminary injunction, which will be found in 177 F. 257. Upon appeal from that decision this court filed a brief memorandum. 180 F. 111, 103 C.C.A. 31. Subsequently in a suit by the same complainant against a different infringer Judge Hand elaborately discussed the questions. Wright v. Paulhan (C.C.) 177 F. 261. The opinion of Judge Hazel at final hearing, now here for review, will be found in 204 F. 597. As we are in full accord with the reasoning by which he (and Judge Hand) reached the conclusions that the patent in suit is a valid one, that the patentees may fairly be considered pioneers in the practical art of flying with heavier-than-air machines, and that the claims should have a liberal interpretation, it seems unnecessary to add anything to what has been already written. That the third claim, when liberally construed, has been infringed, seems too plain for argument.

As to the other claims, in which the vertical rear rudder is an element, we are satisfied from the testimony, as was the court below, that during some parts of their flight defendant's machines use the rudder synchronously with the wings, so that by their joint action lost balance may be restored, or a threatened loss of balance be averted. Such use of the rudder constitutes infringement, and a machine that infringes part of the time is an infringement, although it may at other times be so operated as not to infringe.

Touching the question of the sufficiency of notice as a basis for damages and profits, under section 4900, U.S. Rev. Stat. (U.S. Comp. St. 1901, p. 3388), we are of the opinion that the notice to Glenn H. Curtiss was sufficient, not only for himself, but also to charge the corporation, which he thereafter organized to exploit his machine and of which he was an officer.

The decree is affirmed, with costs.