Wednesday, April 09, 2014

Historical revisionism in the current patent reform debate: first Elias Howe and now the Wright Brothers, re-interpreted?

Of the recent discussion of patent reform, note the comment on April 9 to an earlier IPBiz post.

Separately, note the questionable content in a Wall Street Journal online post titled The Wright Brothers and a Patent-Law Dogfight by one LAWRENCE GOLDSTONE.

One gets the "slant" of the article from the text

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.

After December 1903, the Wright Brothers returned to Ohio, where they continued to fly. Their patent application had been filed BEFORE December 1903, and had nothing to do with powered flight, but rather with three dimensional control of flight, powered or unpowered. Their intention was to enforce their patent against people who would make money from utilizing their invention, and they made clear they would not enforce the patent against people who made their own planes for pleasure. So the text "on every airplane produced" is wrong.

Of the Goldstone text

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.

As to the matter of damages, in the face of World War I, Franklin Roosevelt (then in the Navy Department, which was a separate Cabinet branch at the time) arranged a "patent pool" so the "big guys" in the aviation business shared the spoils; the $10,000 buy-in blocked the "little guys." The on-going patent litigations were placed in abeyance, and were not re-initiated after World War I. Orville did not leave the aviation business. He did have interest in preserving the Wright legacy, which involved some fractious dealing with the Smithsonian, which had helped Curtiss in the patent dispute. Glenn Curtiss was selling real estate in Florida by 1920, and was not innovating in aviation.

Goldstone mentioned some text of Wilbur

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.

A more accurate discussion is found in the 2003 book by James Tobin:

quote of Wilbur Wright on page 361: "We had hoped in 1906 to sell our invention to governments for enough money to satisfy our needs and then devote our time to science, but the jealously of certain persons blocked this plan, and compelled us to rely on our patents and commercial exploitation... When we think what we might have accomplished if we had been able to devote this time to experiments, we feel very sad, but it is always easier to deal with things than with men, and no one can direct his life entirely as he would chose." [This was written in January 1912. Four month later, Wilbur became ill in Boston. He died on May 30, 1912.]

Of the Wrights' "secrecy":

Also of note in the Tobin book is the discussion of Amos Ives Root. On page 220, Tobin notes that an account written by Root for his readers of Gleanings in Bee Culture was rejected for publication in Scientific American.

[see "It is always easier to deal with things than with men" ]

One earlier, relevant post on IPBiz Patent thickets and the Wright Brothers . Some text from the 2006 post:

The courts held that ailerons were the equivalent of wing-warping, so that the Wright patent was not blocked by the patents of Curtiss. "But for" the pool, Curtiss would have lost his shirt. The pool agreement was, not surprisingly, written by Curtiss' lawyer, Crisp. The Navy Department was interested in developments by Curtiss, while the War Department had been ignoring what the Wrights had been saying for years.


US-built JN-4's were used as trainers to some extent, but were never used as fighters. All American fliers in WWI used foreign-made fighters. The surplus of (unused) JN-4's depressed prices for aircraft in the 1920's.

At the time of the pool, Wilbur was dead and Orville had sold his financial interests. After 1917, Martin was out of Wright-Martin, so that the actions of Wright-Martin were made by investors not connected to the Wrights or to Martin.

Added after original post.

Mr. Goldstone has responded to the post, and that response is given below.

As one point, the filing date of the application that led to US 821,393 is listed on the issued patent as March 23, 1903, which is before the flight of December 17, 1903. The Wrights did NOT file a new application after December 17, 1903. Thus, they did not "re-file" in 1904. They prosecuted the application filed on March 23, 1903. They utilized the disclosure of March 23, 1903. The figures of that disclosure have no engines. Mr. Goldstone is invited to comment upon "when" attorney Toulmin entered the picture.

Link to patent

As to the term "monopoly," even the US Supreme Court sometimes lapses into the use of this term to describe patent rights. However, as most readers of this blog know, a patent right is a a right to exclude, not a right to practice.
This issue actually arose in the Wright/Curtiss wars, because it was alleged that some Curtiss patents might block the Wrights' rights to some embodiments. The diode/triode impasse was yet to come.

Mr. Goldstone has an open invitation to correct any other "errors" he perceives to exist in the above text. If he fails to do so, an adverse inference against Mr. Goldstone's credibility will be made.

Update on April 12, 2014.

IPBiz received no further word from Mr. Goldstone.

Separately, on "trolls," see


Blogger Lawrence Goldstone said...

Ha, where to begin. I'll respond only to your first factual error. The patent application the Wrights filed before 12/03 was rejected. The reason they left off the powered part when they refiled in early 1904--after their flight--was because their PATENT LAWYER, Harry Toulmin, told them--and this I quote in my book from letters between him and the Wrights--was that adding a motor would make approval of their application much more difficult. Wilbur speaks of "monopoly" regularly, including in the last letter he wrote before his death--to another PATENT LAWYER. Tobin's book is excellent, one of the best on the period, but before you take such umbrage, I suggest you read mine. Afterwards, I will be happy to discuss the other elements of your post that are equally in error.
Lawrence Goldstone

10:50 AM  

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