Friday, December 18, 2015

Post in TIME attacks Wright Brothers as pioneering trolls

There is a sad post at TIME magazine ripping the Wright Brothers as the pioneering patent trolls.


There are at least two things wrong with the article.

NOT TROLLS. The Wrights were not trolls (or NPEs) by today's definitions.
They invented a method of three-dimensional flight control that no one, for centuries, had envisioned. They made product.

"TROLL ISSUES" preceded the Wright Brothers. Whatever they were, not pioneer trolls. The case of George Selden preceded the Wright litigation. Selden had an idea for an automobile, which he did not embody at the time of his application, and for which he did not try to sell product. Henry Ford was a "victim" of the Selden patent, and initially not favorably disposed to the Wrights, but Ford changed his mind about the Wrights.


See previious IPBiz post
"Unlocking the Sky": missing a few facts?
, including the text:

Shulman does not appreciate that the Wrights' invention was directed to three-dimensional control, and argues that the underlying principle of wing-warping was well-known for as many as fifty years before the Wrights. (p. 45).

Although Shulman talks about how Wrights' lawyers "write" in the patent [p. 46], the patent application of the Wrights (filed months before Dec. 1903) was written by the Wrights, not lawyers. The Wrights did not contact a lawyer until AFTER Dec. 1903, when THE WRIGHTS were threatened by a patent interference by the later-partner of Glenn Curtiss (Augustus Herring, a fact not discussed by Shulman).

The TIME author, Sean Trainor, although having a Ph.D. in History & Women’s Studies from Penn State University, misses this critical fact about the patent assertions AGAINST the Wrights. Among other things, he also omits the use of the re-constructed Langley Aerodrome, to fraudulently challenge the Wright patent.

In the text -- Distressed by this state of affairs, an up-and-coming politician named Franklin Delano Roosevelt, then serving as Assistant Secretary of the Navy, decided to take action. Strong-arming key players throughout the American aeronautic industry, Roosevelt convinced intellectual property holders to form a patent pool that would allow airplane makers to use one another’s technologies for a modest fee. --, Trainor wrongly implies that the licensing fee was "modest." In fact, it eliminated all the small competitors.

Text from TIME:

In waging this battle, the Wrights proved themselves more than pioneers in aviation. They also proved themselves pioneers of what’s sometimes known as patent trolling: the controversial modern practice of suing competitors for infringements that fall beyond the scope of one’s patent. Their legacy, therefore, is one of litigiousness and obstruction, as well as brilliance and innovation. Advancing aeronautics by leaps and bounds in the first years of the 20th century, Orville and Wilbur Wright squandered their talents and energies – and those of their most gifted rivals – in a period of legal wrangling between 1909 and 1917. American aviation would suffer immeasurably as a result, and the Wrights would establish dangerous precedents for subsequent generations of would-be patent trolls.


**As to "what" a troll is, a May 2015 post in Forbes defined a troll in terms of not producing product.


**As to the AIA and "inter partes review," the procedures therein address validity/invalidity of claims and do not address
infringement issues relating to overbroad assertions of claim scope. Note for example:

For more on the motivations behind passage of the AIA, particularly the modification to administrative review, see, for example, Protecting Small Businesses and Promoting Innovation by Limiting Patent Troll Abuse, Hearing on S 23 before the US Senate Judiciary Committee, 113th Cong, 1st Sess *3–6, 8 (2013) (“2013 Patent Troll Abuse Hearing”) (testimony of Q. Todd Dickinson, Executive Director of the American Intellectual Property Law Association), online at (visited Oct 25, 2014) (recounting the debate leading up to the AIA and referring to “the assertion of allegedly invalid or overbroad patents” as “the very abuse for which AIA post-grant procedures were created”).
(from 81 U Chi L Rev Dialogue 93)

To illustrate the point, the Selden patent was never found invalid (and likely might have survived inter partes review), but it was found not infringed by Henry Ford, Ford dealers, and Ford buyers.


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