One of the most fascinating stories in patent law is now over 100 years old: the story about how the Wright Brothers tried to lock up all legal rights to human flight. I told this story in my 2007 book Group Genius, and I’ve just learned that Lawrence Goldstone has told a new version–in his forthcoming book Birdmen: The Wright Brothers, Glenn Curtiss and the Battle to Control the Skies, excerpted in the Wall Street Journal April 9, 2014.* In Group Genius, I use the Wright Brothers’ legal battles to demonstrate how “collaborative webs” are always more innovative than solitary lone geniuses. The Wrights tried to lock up the rights, and it ended up killing their own creative potential:
[In 1903] They didn’t get a patent for “flight”; they were granted a patent for their key innovation, a lateral control mechanism that steered by warping the entire wings forward or backward….Instead of showing off their new invention, they holed up in Dayton, refused to do press interviews, and wouldn’t let photographers near the farm field where they tested small improvements. On September 30, 2007, Alexander Graham Bell donated $20,000 to found the Aerial Experiment Association (AEA). Their goal was to win Scientific American magazine’s prize for the first plane that could fly a kilometer in a straight line. Their first plane was tested on March 12, 1908. It looked a lot like the Wright’s plane, but to avoid infringing on the Wright’s patent, it didn’t use wing warping for lateral control; instead, it used a system of trusses to curve the whole wing up or down. Casey Baldwin, an AEA member, designed the next plane; for lateral control, it used ailerons–small pivoting surfaces at the trailing edge of the wing. The third AEA project was Glenn Curtiss’s June Bug, and he flew it a mile and won the Scientific American trophy. The Wrights couldn’t even enter because their plane didn’t have wheels (they launched their plane from a special railroad track) and couldn’t take off from the field. When Curtiss started getting a lot of press attention, the Wrights filed a patent infringement lawsuit. They claimed their patent controlled all lateral steering mechanisms; if true, then no plane could ever fly without infringing the patent. In 1913, a federal court sided with the Wrights and ordered Curtiss to cease making airplanes using ailerons. Curtiss then built a different plane, based on an 1899 design by Samuel Pierpont Langley; now Curtiss could claim his idea came before the Wright’s patent, and the case dragged on into World War I. (pp. 189-191)
Because this legal fight blocked American innovation, the collaborative web instead kept innovating in Europe, where the Wright brothers weren’t able to enforce their patent. British, German, and French airplane industries were booming, with constant innovations leaving the Americans behind. In my public talks, I often show photos of the airplanes being built in Europe; they look like modern planes. Then, I show a 1914 photo of the Wright brothers’ plane; it has barely changed from 1903. In 1917, when the U.S. entered the war, the U.S. government forced the Wright and Curtiss companies to form a patent pool with open sharing.
Goldstone’s new book tells a portion of the story; I got many of the above details from Shulman’s 2002 book, Unlocking the Sky: Glenn Hammond Curtiss and the Race to Invent the Airplane. Goldstone notes that the Wrights were indeed granted a extremely broad patent, and the court upheld it in 1913. (I’ve read the court decision, by Judge Learned Hand; it’s, fascinating and it has lessons for today’s patent fights.) Goldstone concludes:
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.
*Goldstone, L. 2014. “How a Patent Fight Grounded the Wright Brothers.” Wall Street Journal, April 9, p. A13.