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From: Flying Machines Construction Operation

Owing to the fact that the Wright brothers have enjoined
a number of professional aviators from using
their system of control, amateurs have been slow to
adopt it. They recognize its merits, and would like to
use the system, but have been apprehensive that it
might involve them in litigation. There is no danger
of this, as will be seen by the following statement made
by the Wrights:

What Wright Brothers Say.

"Any amateur, any professional who is not exhibiting
for money, is at liberty to use our patented devices.
We shall be glad to have them do so, and there will be
no interference on our part, by legal action, or otherwise.
The only men we proceed against are those who, without
our permission, without even asking our consent,
coolly appropriate the results of our labors and use them
for the purpose of making money. Curtiss, Delagrange,
Voisin, and all the rest of them who have used our
devices have done so in money-making exhibitions. So
long as there is any money to be made by the use of the
products of our brains, we propose to have it ourselves.
It is the only way in which we can get any return for
the years of patient work we have given to the problem
of aviation. On the other hand, any man who wants
to use these devices for the purpose of pleasure, or the
advancement of science, is welcome to do so, without
money and without price. This is fair enough, is it not?"

Basis of the Wright Patents.

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,
so as to present to the atmosphere different angles
of incidence, and means for so moving said lateral marginal
portions, substantially as described.

Application of vertical struts near the ends having
flexible joints.

Means for simultaneously imparting such movement
to said lateral portions to different angles relatively to
each other.

Refers to the movement of the lateral portions on the
same side to the same angle.

Means for simultaneously moving vertical rudder so
as to present to the wind that side thereof nearest the
side of the aeroplane having the smallest angle of incidence.

Lateral stability is obtained by warping the end wings
by moving the lever at the right hand of the operator,
connection being made by wires from the lever to the
wing tips. The rudder may also be curved or warped in
similar manner by lever action.

Wrights Obtain an Injunction.

In January, 1910, Judge Hazel, of the United States
Circuit Court, granted a preliminary injunction restraining
the Herring-Curtiss Co., and Glenn H. Curtiss, from
manufacturing, selling, or using for exhibition purposes
the machine known as the Curtiss aeroplane. The injunction
was obtained on the ground that the Curtiss
machine is an infringement upon the Wright patents in
the matter of wing warping and rudder control.

It is not the purpose of the authors to discuss the
subject pro or con. Such discussion would have no proper
place in a volume of this kind. It is enough to say that
Curtiss stoutly insists that his machine is not an
infringement of the Wright patents, although Judge Hazel
evidently thinks differently.

What the Judge Said.

In granting the preliminary injunction the judge said:

"Defendants claim generally that the difference in
construction of their apparatus causes the equilibrium or
lateral balance to be maintained and its aerial movement
secured upon an entirely different principle from that
of complainant; the defendants' aeroplanes are curved,
firmly attached to the stanchions and hence are incapable
of twisting or turning in any direction; that the
supplementary planes or so-called rudders are secured to
the forward stanchion at the extreme lateral ends of
the planes and are adjusted midway between the upper
and lower planes with the margins extending beyond the
edges; that in moving the supplementary planes equal
and uniform angles of incidence are presented as
distinguished from fluctuating angles of incidence. Such
claimed functional effects, however, are strongly
contradicted by the expert witness for complainant.

Similar to Plan of Wrights.

"Upon this contention it is sufficient to say that the
affidavits for the complainant so clearly define the
principle of operation of the flying machines in question
that I am reasonably satisfied that there is a variableness
of the angle of incidence in the machine of defendants
which is produced when a supplementary plane on one
side is tilted or raised and the other stimultaneously
tilted or lowered. I am also satisfied that the rear
rudder is turned by the operator to the side having the
least angle of incidence and that such turning is done
at the time the supplementary planes are raised
or depressed to prevent tilting or upsetting the machine.
On the papers presented I incline to the view, as already
indicated, that the claims of the patent in suit should be
broadly construed; and when given such construction,
the elements of the Wright machine are found in defendants'
machine performing the same functional result.
There are dissimilarities in the defendants' structure--
changes of form and strengthening of parts--which may
be improvements, but such dissimilarities seem to me to
have no bearing upon the means adopted to preserve the
equilibrium, which means are the equivalent of the claims
in suit and attain an identical result.

Variance From Patent Immaterial.

"Defendants further contend that the curved or arched
surfaces of the Wright aeroplanes in commercial use are
departures from the patent, which describes 'substantially
flat surfaces,' and that such a construction would
be wholly impracticable. The drawing, Fig. 3, however,
attached to the specification, shows a curved line inward
of the aeroplane with straight lateral edges, and considering
such drawing with the terminology of the specification,
the slight arching of the surface is not thought
a material departure; at any rate, the patent in issue
does not belong to the class of patents which requires
narrowing to the details of construction."

"June Bug" First Infringement.

Referring to the matter of priority, the judge said:

"Indeed, no one interfered with the rights of the
patentees by constructing machines similar to theirs until
in July, 1908, when Curtiss exhibited a flying machine
which he called the 'June Bug.' He was immediately
notified by the patentees that such machine with its
movable surfaces at the tips of wings infringed the patent
in suit, and he replied that he did not intend to publicly
exhibit the machine for profit, but merely was engaged
in exhibiting it for scientific purposes as a member
of the Aerial Experiment Association. To this the patentees
did not object. Subsequently, however, the machine,
with supplementary planes placed midway between
the upper and lower aeroplanes, was publicly exhibited
by the defendant corporation and used by Curtiss in
aerial flights for prizes and emoluments. It further appears
that the defendants now threaten to continue such
use for gain and profit, and to engage in the manufacture
and sale of such infringing machines, thereby becoming
an active rival of complainant in the business of
constructing flying machines embodying the claims in suit,
but such use of the infringing machines it is the duty
of this court, on the papers presented, to enjoin.

"The requirements in patent causes for the issuance
of an injunction pendente lite--the validity of the patent,
general acquiescence by the public and infringement
by the defendants--are so reasonably clear that I believe
if not probable the complainant may succeed at final
hearing, and therefore, status quo should be preserved
and a preliminary injunction granted.

"So ordered."

Points Claimed By Curtiss.

That the Herring-Curtiss Co. will appeal is a certainty.
Mr. Emerson R. Newell, counsel for the company,
states its case as follows:

"The Curtiss machine has two main supporting surfaces,
both of which are curved * * * and are absolutely
rigid at all times and cannot be moved, warped or
distorted in any manner. The front horizontal rudder is
used for the steering up or down, and the rear vertical
rudder is used only for steering to the right or left, in
the same manner as a boat is steered by its rudder. The
machine is provided at the rear with a fixed horizontal
surface, which is not present in the machine of the patent,
and which has a distinct advantage in the operation
of defendants' machine, as will be hereafter discussed.

Does Not Warp Main Surface.

"Defendants' machine does not use the warping of the
main supporting surfaces in restoring the lateral equilibrium,
but has two comparatively small pivoted balancing
surfaces or rudders. When one end of the machine
is tipped up or down from the normal, these planes may
be thrown in opposite directions by the operator, and
so steer each end of the machine up or down to its
normal level, at which time tension upon them is released
and they are moved back by the pressure of the
wind to their normal position.

Rudder Used Only For Steering.

"When defendants' balancing surfaces are moved they
present equal angles of incidence to the normal rush
of air and equal resistances, at each side of the machine,
and there is therefore no tendency to turn around a
vertical axis as is the case of the machine of the patent,
consequently no reason or necessity for turning the vertical
rear rudder in defendants' machine to counteract any
such turning tendency. At any rate, whatever may be
the theories in regard to this matter, the fact is that
the operator of defendants' machine does not at any
time turn his vertical rudder to counteract any turning
tendency clue to the side balancing surfaces, but only
uses it to steer the machine the same as a boat is

Aero Club Recognizes Wrights.

The Aero Club of America has officially recognized
the Wright patents. This course was taken following a
conference held April 9th, 1910, participated in by William
Wright and Andrew Freedman, representing the
Wright Co., and the Aero Club's committee, of Philip
T. Dodge, W. W. Miller, L. L. Gillespie, Wm. H. Page
and Cortlandt F. Bishop.

At this meeting arrangements were made by which
the Aero Club recognizes the Wright patents and will
not give its section to any open meet where the promoters
thereof have not secured a license from the
Wright Company.

The substance of the agreement was that the Aero
Club of America recognizes the rights of the owners of
the Wright patents under the decisions of the Federal
courts and refuses to countenance the infringement of
those patents as long as these decisions remain in force.

In the meantime, in order to encourage aviation, both
at home and abroad, and in order to permit foreign
aviators to take part in aviation contests in this country
it was agreed that the Aero Club of America, as the
American representative of the International Aeronautic
Federation, should approve only such public contests
as may be licensed by the Wright Company and that
the Wright Company, on the other hand, should encourage
the holding of open meets or contests where ever approved as
aforesaid by the Aero Club of America
by granting licenses to promoters who make satisfactory
arrangements with the company for its compensation
for the use of its patents. At such licensed meet any
machine of any make may participate freely without
securing any further license or permit. The details and
terms of all meets will be arranged by the committee
having in charge the interests of both organizations.



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