Patents and innovation: a lesson from the Wright brothers

Rarely have I read such an interesting, brilliant and original piece as Lawrence Goldstone's 'The Wright Brothers and a Patent-Law Dogfight', published yesterday on the Wall Street Journal. The short article briefly tells the story of the famous lawsuit between the Wright brothers and Glenn Curtiss, which the author explores in detail in his forthcoming book entitled 'Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies'. 

In 1904, Orville and Wilbur Wright filed a patent application for their groundbreaking invention, which taught how to simultaneously control all the three axes of flight: roll, through wing-warping, yaw, through a rear rudder, and pitch. 'Before sharing their invention with the world', Goldstone explains, 'they wanted to be certain that they had secured a patent that would cover the very notion of controlled flight itself', as they intended to collect royalties on every airplane produced. The brothers were granted US Patent 821,393, significantly titled 'Flying Machine', in 1906: a pioneer patent, enjoying a broad range of equivalents under Westinghouse v Boyden Power Brake Co. (where the Supreme Court stated that the term pioneer 'is commonly understood to denote a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art', inventions such as the electrical telegraph or the telephone - you can read more about pioneer patents here).

Wilbur Wright

When Glenn Curtiss started manufacturing airplanes using ailerons, instead of wing-warping, the Wright brothers immediately brought suit, alleging patent infringement, as their patent clearly stated that 'our invention is not limited to this particular construction, since any construction whereby the angular relations of the lateral margins of the aeroplanes may be varied in opposite directions with respect to the normal planes of said aeroplanes comes within the scope of our invention'. 

The patent fight with Curtiss took a heavy toll on Wilbur Wright: Goldstone describes him as completely obsessed and absorbed by the lawsuit, to the point that he ceased working on further developments of his invention and contracted a typhoid fever from which he never recovered. Orville accused Curtiss of being the cause of his brother's physical and mental breakdown, but the article presents an alternative perspective:

But Orville might as well have blamed the patent system. If patents had been more restrictive, if the Wrights could not have had the carrot of monopoly dangled in front of their noses, they would have been forced to continue to innovate, to apply their awesome scientific instincts to bettering their invention instead of merely defending it. 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.

Although the Wright brothers eventually won the lawsuit, Orville left the aviation business, while Curtiss' company blossomed (and, in an interesting plot twist, the two companies gave birth to one of the first examples of government-induced patent pools, and later consolidated into the Curtiss-Wright Corporation). Goldstone thinks, and I certainly agree, that the patent war between the two pioneers of aviation has an important lesson to teach:

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.

The keyword that resonates through Goldstone's article is innovation. It is frequently stated, and universally accepted, that patent law promotes innovation, encouraging investments in research and development. But the story of Wright's lawsuit suggests that the relationship between patent protection and innovation is more complex: the first is not a substitute for the latter, while the latter may supersede the former, although they probably work best when one accompanies the other. Genetically, innovation represents a process, a constant stream of new ideas, which flows at different speeds, depending on a number of variables (e.g. industry characteristics, competition, market demand, technical complexity, etc.). Patents protect segments of that stream, but they cannot halt the flow of innovation. Therefore, when a patentee stops innovating, as Wilbur Wright did, his patents may quickly lose their strategic value.

Glenn Curtiss

Goldstone writes that '[i]n something of an irony, the patent system, designed specifically to promote and protect innovation, has never been particularly adept in dealing with new technologies'. But is it really the patent system's fault? We could probably argue that, in part, it is, and deal with the issue by amending existent legislation, for example through measures aimed at better tailoring the patent term to the innovative value of the inventions or to the optimum patent reward, as suggested by Benjamin Roin here. However, we could also argue that inventors bear their own share of responsibility, especially when they leave the path of innovation to live in the shadow of their patented inventions.

A modern example of the same lesson taught by the Wright's patent war can be seen in the current global controversy between Apple and Samsung (which you can investigate in detail by reading Florian Mueller's blog). Both parties are discussing, in many jurisdictions around the world, reciprocal allegations of patent infringement, with mixed success. The strategic value of litigation, for either company, is certainly obvious, both in terms of damages and brand reputation. However, the strategic value of innovation, for Samsung and Apple, is clearly much higher. The question, therefore, remains always the same: does it make sense to rely more on patent protection than on innovation? The experience of the Wright brothers suggests that it does not.