Thursday, 10 April 2014

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.


Anonymous said...

An interesting story, but like many such anecdotal cases about patent & innovation, it builds on one assumption that if the inventors did not participate in lawsuits to seek monetary rewards, they would have continued to produce great (and even greater) inventions. However, sadly, that's just our society's wishful thinking. Flash of genius rarely occurs, and many individual inventors (even companies, look at Nokia & some big pharmas) simply cannot keep innovating - many of them have to rely on one or two of their past breakthroughs for the rest of their lives. If there is no patent system guarding their interests, the smart infringers will just copy, infringe and tell the inventors: you guys cheer up, invent more for the society please. How fair is that?

Stefano Barazza said...

Dear Anonymous,
Thanks for your comment!
I agree about the importance of a strong patent system, of course. The point of Goldstone's article, and of my reflection on it, is that the existence of strong patent protection should not deter the inventor from continuing its efforts to innovate. In the long term, innovation generates more ancillary benefits than patent protection alone: that is why I suggest, in my post, that one should accompany the other, and that they should not grow apart. You are obviously right in suggesting that keeping the flow of innovation may not be easy - there is indeed some wishful thinking here, but an increased focus of innovation would certainly bring tremendous benefits not only to inventors, but to our society as a whole.

My opinion said...

Anonymous, I worked for two decades for a pharmaceutical company and I can tell you that r&d in the sector is slow, expensive and complex. But there is indeed a tendency to slow down development once a major invention is delivered, as relying on a very strong patent is easier and faster. Stefano has a good point, in my view, as far as the approach of companies is concerned. I for one would like to see more public spending to help inventors innovate. The budget of many countries in this respect is ridiculous!

Anonymous said...

Re public spending, our governments want us to be innovators, yet refuse to share the risk and cost of innovation. May explain why patents and innovation frequently bifurcate. Sadly, it appears we have to learn from Asia...

Food for thought (for a future post maybe?):


Suleman Ali said...

The Patlit article at talks about research that found that patents inhibit downstream developments (later 'cumulative' research).

Anonymous said...

I liked your definition of innovation (a process, a constant stream of new ideas, which flows at different speeds, depending on a number of variables).

Anonymous said...

I should add that my own metaphor for innovation is that it acts as a spring. You charge it through research, release it, and it makes you jump in front of your competitors. Patenting keeps this mechanism safe, otherwise the spring would break.
Best regards,


Anonymous said...

for people interested in the subject of the Wright brothers:

A great book!

Innovation rules! said...

Jobs like Wright? When he said he was willing to go to thermonuclear war on Android, my first reaction was like yours. I wish he had used thermonuclear energy to supercharge Apple's innovation!

Great post, btw! Thanks.

Anonymous said...

From what I can see from this post, Goldstone's book perpetuates several myths about the Wrights, especially the one that their patent was limited to wing warping and that ailerons were a design-around.

In fact, if one reads the patent, and is somewhat versed in both aeronautics and patent law, it becomes quite clear that:

a) the patent was by no means limited to roll control by wing warping ; and

b) alternative means like ailerons were clearly considered by the Wrights.

The actual reason why the Wrights depended on a broad interpretation of their patent claims is rather more complicated and was the result of an unfortunate combination of prior art and the wording of claim 7 in their patent.

Claim 1 was directed to a winged "flying machine" in which "marginal portions" of the wings at each side could be set at different angles of attack. This reflects how both wing warping and ailerons work to generate different lift at each side to roll the airplane.

Unfortunately for the Wright brothers, someone had already thought of wing warping before them, although with a different aim: one Louis Pierre Mouillard had studied the flight of buzzards, noticed how they warp the wings, but misinterpreted the function of this wing warping. Instead of proposing it for roll control (banking the aircraft around its longitudinal axis), he surmised that birds used it to yaw (rotation around the vertical axis). He thought that, by increasing the angle of attack of one of the wings, this would increase its drag, and pivot the aircraft towards that side. This is in fact true, but yawing the aircraft does not necessarily lead to a turn. In fact, an aircraft turns by banking, much like a cyclist or a motorcyclist. This is something that both the Wrights (bicycle makers) and Curtiss (a record-setting motorcyclist) understood much more naturally than Mouillard.

Nevertheless, device claim 1 of the Wright's patent was not novel with respect to Mouillard, even though the Wrights' method of steering was completely different.

Besides, Mouillard was not altogether wrong: by generating more drag besides more lift, the wing with the highest angle of attack does indeed provoke what is called "reverse yaw". The airplane turns its nose, although in the opposite direction to that towards which the aircraft starts turning. This is actually a very negative effect, against which the Wrights stumbled as soon as they started experimenting with wing warping.

However, having encountered reverse yaw in their experiments, the Wrights had set about to counter it. After much effort, they had finally come upon combining wing warping (or ailerons!) for roll control with a rudder for yaw control. This is, to this date, the basic scheme for steering an airplane. Combining rudder input with roll control to suppress reverse yaw is basic airmanship.

However, in their early "Flyers" and, crucially, in claim 7 of their patent, the Wrights, who were particularly obsessed with achieving "automatic control" physically linked the rudder to their wing warping controls. Curtiss (and others) sought to circumvent the patent, not by using ailerons, but by unlinking the control of those ailerons from that of the rudder. This also had the beneficial effect of allowing isolated use of the rudder to, for example, put the aircraft in a sideslip (sometimes a useful maneuver, for instance for landing).

The whole debate on the broad interpretation of the Wrights' patent turned around whether claim 7 should also be interpreted to cover airplanes in which rudder and roll control can be actuated simultaneously to prevent reverse yaw, and not just those in which the rudder is physically linked to the roll control surfaces. Ailerons were hardly an issue.

Anonymous said...

I will also debunk two other myths regarding this patent battle:

a) Despite the rocky litigation, the patent (or patents: corresponding applications were filed abroad, using the then quite new Paris Convention) actually brought quite a few benefits for the Wrights: thanks to them, they got substantial support from the "venture capitalists" of their time, such as the likes of [John Pierpont Morgan]( and [Emil Rathenau]( (both of them heavily involved in General Electric and the exploitation of the Edison patents).

b) The Wrights didn't try to claim "any means of flight control", nor were they particularly litigious patentees: in general they were quite tolerant of, and friendly towards, other early aviators. The main reason for their enduring animosity towards the group around Glenn Curtiss was rather caused by the presence within this group of a singularly unpleasant character with the improbable name of [Augustus Herring](, a serial con artist who cheated everybody he ever did business with, including both the Wrights and, eventually, Curtiss...

Finally, it is worthwhile to note that the lines back then were hardly split between "pro-" and "anti-patents": Curtiss and co. were strongly supported by Alexander Graham Bell, who financed their early work. Orville Wright, on the other hand, eventually earned the respect and friendship of Henry Ford, who had just beaten in court the original "patent troll", [George Selden](

Stefano Barazza said...

Dear Anonymous,

thanks so much for your interesting and insightful comments.

Given your deep knowledge of the facts at issue, would you be interested in writing an in-depth post about the Wrights' patent and the dispute with Curtiss? I think many readers would be interested in reading it (at least, I would!).

You can contact me at stefbar[at] I look forward to hearing from you,