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Wright Brothers’ Patent Lawyer
The Wright Brothers failed in their first attempt to secure a patent for
their airplane. They decided they had better find a lawyer who was an expert in
They had heard of such a person that lived in Springfield, Ohio. His name
was Harry A. Toulmin and he was referred by two Dayton friends; Wil Ohmer and
John Kirby. A century ago the Wrights’ rode the Interurban railway from
Dayton to Springfield to engage Mr. Toulmin.
The visit turned out to be one of the better decisions the Wrights’ had
ever made. Toulmin tied up the patent so tightly that nobody was able to break
it during the life of the patent despite 30 lawsuits of others claiming to be
the inventor of the airplane.
It was Toulmin who suggested that the patent should cover the three-axis
system of controls used on the 1902 glider, rather than the plane itself. It
was a brilliant decision because even today every airplane that is flown uses
the Wright’s control system.
The patent (No. 821,393) was granted May 22, 1906, with Toumlin’s
signature on the application. It is doubtful that the Wright brothers would
have been credited with the invention without the patent.
Toulmin secured four more patents and then took steps to put the original
patent into effect in Europe. Toulmin represented the Wrights’ for a total of
Today, there is a statue of Henry Toulmin across the street from the
building where Toulmin had his office.
Reference: Springfield News, October 10, 2008
Part 3, Vindication
(This is part 3 of 3 parts)
After Wilbur's death in 1912, Orville became the president of
the American Wright Co. On February 1913, he left with Katharine
for Europe to follow-up on Wilbur's pursuit of their patent
Their first stop was in England, where they assisted in the
establishment of the British Wright Co. Along with the establish
of the new company, the British government made a lump-sum payment
of 15,000 pounds as settlement of all unauthorized use of the
Wright patent in England.
The next stop was in Germany. They arrived just in time to hear
that the German Supreme Court uphold "with great regret" the
earlier ruling of the German patent office that the Wrights
forfeited all rights to their patent because of "prior disclosure."
They did throw the Wrights a bone by recognizing the fact that
they were the inventors of wingwarping and had patent control
of the combined use of wingwarping with a vertical rudder.
It was then on to Paris for a week. There, the French High Court
announced a ruling that seemed to favor the Wrights, but once
again the judges allowed a defense motion to create another
panel of experts to review "prior art."
Wilbur, before his death, maintained that the claim of prior
art was "absolutely rot." "The art was at an absolute standstill
in France from 1897 till 1902, when we invented our method of
control. The patent was not published till June 1904. It was
only after reading it that they began to apply our system."
It would turn out that the lawyers involved on both sides would
manage to drag out the case without resolution until the Wrights'
French patent expired in 1917.
Orville and his sister sailed for home on March 9. Good news
awaited them. Judge Hazel on February 27, handed down his decision
upholding the Wright patent. Curtiss was enjoined from manufacture,
sale and exhibition of airplanes.
Not surprisingly, Curtiss appealed and was again allowed to
On January 13, 1914, the U.S. Circuit Court of Appeals affirmed
the Wrights "as pioneers in the practical art of flying heavier-than-air
machines." Orville was pleased with this decision and believed
it provided total vindication for all of Wilbur's and his hard
Every airplane that flies today does so by use of devices and
discoveries first made by the Wright brothers.
Captain Thomas Baldwin, an associate and friend of Curtiss,
in an interview published in the New York Times, February 28,
1914, acknowledged the indebtedness. "It is high time for
all of us to step up and admit not a one of us ever would have
got off the ground in flight if the Wrights had not unlocked
the secret for us."
a strange thing happened. Henry Ford, whose company was founded
in 1903, the year of the Wrights' "first flight", decided to
help Curtiss by offering him the services of his attorney, W.
Benton Crisp. Crisp had previously helped Ford win his long
patent fight with George Seldon who claimed to have a prior
patent on a lightweight engine called the "road engine."
Crisp adroitly exploited a technicality with a new approach
for challenging the Wright patent. The strategy was for Curtiss
to disconnect the ailerons so that they could only work independently
of each other. This approach was covered under the Wright patent,
but had never before been cited or included in the earlier suit.
The Wright Co. would have to bring suit all over again which
they did on November 16, 1914.
(Ford and Orville later became friends and Ford arranged with
Orville to move the original Wright homestead and last bicycle
shop from Dayton to Ford's Greenfield Village, Dearborn, Michigan
where they were restored.)
Earlier in 1914, Curtiss tried another tactic. He was permitted
to take the failed original Langley machine that was in the
Smithsonian Institution, Washington, to Hammondsport, New York,
to make tests in an attempt to invalidate the Wright claim of
pioneers. The machine was reported to have flown but only after
modifications from the original. (Archives:
The Wright Brothers Roundabout Route to the Smithsonian.)
While this was going on, Orville placed in motion a strategy
to sell the Wright Co. Orville had never been happy in his role
as president of the company. He didn't like being in management
and made no secret of it. He didn't even keep an office in the
factory building, preferring to use his old office above the
bicycle shop where his secretary, Mabel Beck, guarded the door
to unwanted intruders.
His strategy was to buy up all the company shares held by members
of the board except one of his friends. To pull this off, he
took a large risk and borrowed a large amount of money for the
first time in his life.
His strategy worked and he sold the company to seven eastern
investors on October 15, 1915. By so doing, he walked away from
the business, including the patent suit.
Wright Co. continued to pursue the patent suit, but it was never
completely resolved. Curtiss was able to drag out negotiations
with repeated proposals for settlement that were never finalized.
World War I brought an end to the fiasco. The U.S. Government
stepped in and commanded a truce to resolve the dispute when
America entered World War I in 1917. Ford's lawyer Crisp, still
on retainer to Curtiss, developed a successful plan to bring
all concerned parties together in a new organization known as
the Manufacturers Aircraft Association. The organization is
still active today as the Aerospace Industries Association and
represents the airplane and space industry
All members of the association were granted use of the patented
technology after payment of a blanket fee. Curtiss and Wright-Martin,
successor to the Wright Co., each received $2 million under
So, the epic patent wars ended with a Wright victory of sorts.
But victory is one that brings to mind Pyrrhus of Epirus, king
of an ancient country in northwest Greece.
Plutarch reports that after defeating the Romans in the battle
of Asculum in 279 B.C. Pyrrhus said, "One more victory like
this will be the end of me." His name lives on in the word
for victory at too great a cost.
Part 2, Wilbur Dies
(This article is part 2 of a series of 3 parts)
The Wrights' battle to defend their patent at home and abroad
was having marginal success. The courts tended to support the
Wrights in their primacy claim but would withhold their final
decision while the defendant's lawyers managed to buy time by
asking for further study. In the meantime their clients were
free to pursue business as usual.
The defendants used two strategies. One was to claim "prior
disclosure," claiming disclosures by Chanute and Wilbur
Wright. The other strategy was to claim "anticipation"
by early pioneers such as Louis-Pierre Mouillard.
As an example of the latter, the French claimed that Mouillard
was the true father of wingwarping. The truth of the matter
is that Mouillard's plan was to use a form of wing twisting
to slow the wing on one side relative to the other for the purpose
of steering in a flat turn. He had no notion of the Wright system
of a coordinated turn using the tail and twisting of wings.
Mouillard's glider didn't even have a tail.
The French Tribunal issued a statement that seemed to support
the Wrights but then created a loophole that set up a panel
of three aeronautical authorities that were to determine whether
the Wright patent had been "anticipated" by others.
In Germany, the German patent office declared that the Wright
patent was invalid because of "prior disclosure."
They cited Octave Chanute's speech in Paris in April 1903 to
the Aero-Club de France in which he talked about the Wright
glider experiments of 1900-02, and Wilbur's speech to the Western
Society of Engineers after the Wrights' glider experiments of
The German arguments were without merit. Chanute didn't understand
the intricacies of the Wrights' flight control system and couldn't
therefore have revealed them.
Chanute was involved in an interview that didn't help the Wrights'
cause. He was quoted in a publication, Aeronautics, the year
before that he thought "the Wrights have made a blunder
by bringing suit at this time." He added that he didn't
think "that the courts will hold that the principle underlying
warping tips can be patented." This later statement is
another indication that he didn't understand the Wright control
This dispute marred a long friendship between the Wrights and
Chanute. (Archives: Chanute
- Friendship Flies into Stall)
As to Wilbur's 1901 speech, the Wrights at the time of Wilbur's
speech had not perfected their control system. The most significant
aspect of this speech was Wilbur's suggestion that Lilienthal's
lift and drag tables were wrong (which they were).
The Wrights appealed the German decision, but to no avail.
It was now apparent that the patent suits were terribly time
consuming for Orville and Wilbur. It was especially tough on
Wilbur who was the brother actively participating in the court
battles at home and abroad.
He was an effective witness, using his knowledge and photographic
memory to perform a masterful job of explaining the technical
complexities of their patent. His testimony resembled a college
seminar on the principles of aeronautical engineering. His students
were the judges and lawyers.
However, the trials were not fun. He detested the legal conflict
with its ritualistic absurdities and delays. The time demands
and travel were becoming an increasing burden.
A number of nuisance suits against the Wrights didn't help.
The publicity generated by the patent wars encouraged a number
of these suits against the brothers that were dismissed, but
still required time and effort.
One such suit was from an Erastus Winkley who held a patent
for an automatic control device for sewing machines. He asserted
that the Wrights had stolen his idea for use on their airplane.
Wilbur sarcastically commented, "It is rather amusing,
after been called fools and fakers for six or eight years, to
find now that people knew exactly how to fly all the time."
By the end of 1911 and 1912, two tragic events occurred. First,
because the patent war had diverted the Wrights attention away
from their airplane business, they were slowly but surely losing
the technology lead to their competitors that was once as much
Second, the strain on Wilbur began to have adverse effects on
his health. He had looked tired for some time. Then, while in
Boston in late April 1912, he became very ill. Wilbur attributed
his sickness to some fish that he had eaten at a Boston hotel.
On his return he felt better but than shortly after his return,
he developed a fever that persisted for several days and his
overall condition worsened.
On May 8, Dr. Daniel B. Conklin diagnosed typhoid fever. Orville
had typhoid fever in 1896 from contaminated well water in
their bicycle shop. He recovered, but the family remembers
how bad that bout had been. Eighty to ninety percent of people
die from the disease because there was no cure at that time.
Wilbur lapsed into unconsciousness and died quietly at 3:15
in the morning on May 30, despite the best that Dr. Conklin
and two other doctors called in could do. His father, three
brothers and sister were at his bedside. He was 45 years old.
Click image for a larger version
Twenty-five thousand mourners
filed past his coffin before the simple funeral service began
in the First Presbyterian Church in Dayton on June 1. There
was no music in the 20-minute service. The pastor read scriptural
messages and an overview of Wilbur's career written by Reuchlin
(older brother). A friend of Wilbur from Indiana read Martin
Luther's hymn, "A Mighty Fortress is Our Lord."
Interment was in a private burial at Woodland Cemetery in Dayton.
Church Bells tolled at 3:30 in the afternoon while all activity
in the city came to halt for ninety minutes.
Bishop Wright eloquently paid tribute to his son: "A
short life, full of consequences. An unfailing intellect, imperturbable
temper, great self reliance and a great modesty, seeing the
right clearly, pursuing it steadfastly, he lived and died."
Orville and Katharine felt the lost of Wilbur the most because
they had been "buddies" since childhood. Brother and
sister became even closer after Wilbur's death and resolved
to carry on Wilbur's fight in the patent wars. This was a fight
that had absorbed Wilbur for the last two years of his life
and they believed it had contributed to his death.
The Patent Wars
Part 1, The Wars Begin
(This article is part 1 of a series of 3 parts)
The Wright Brothers’ time and energy was consumed for a
prolonged period of seven years in defending their patent. At
stake was their claim to have invented and built the world’s
first power-driven, heavier-than-air machine in which man made
free, controlled, and sustained flight.
Their fight would become an obsession that would have
profound adverse consequences on the future of their airplane
business and the health of Wilbur.
The basic Wright patent in the United States (No. 821,393)
was applied for in 1903 and granted in 1906. The patent covered
the control system of the 1902 glider involving the simultaneous
use of wingwarping and rudder to perform a controlled turn and
the ability to maintain roll stability.
The Wrights engaged Springfield, Ohio attorney Harry Toulmin
to represent them which he did for nine years. Orville and
Wilbur would travel to Springfield by the interurban streetcar
from Dayton to Springfield to meet with Toulmin. Toulmin had
come to Springfield from Washington D.C. in 1886 because it was
a center of innovation and invention and required legal
representation for patent proceedings.
They were the first in the long history of man to discover
the secret of manned flight after much hard work and creativity.
They rightly deserve the credit as well as the financial reward
for their momentous contribution. Not everyone agreed.
They had learned from their father, a Bishop, that there were
many dishonest scoundrels in the world. The Wrights were
impeccably honest themselves, and they had no patience for
Edmund Burke once wrote: "There is no safety for
honest men but by believing all possible evil of evil men."
The Wrights would experience the truth of that statement.
They were aware that others in the world would try to steal
their accomplishments and their patents would be insufficient
protection. They would soon find that the situation was far
worse than they believed. Before the fight was over, the
brothers were actively involved in a dozen different suits in
the U.S. and nearly two dozen in Europe.
From the very beginning of their experiments they knew it
would be necessary to protect their secrets from scoundrels,
that’s why they strove for secrecy. They selected Kitty Hawk
for its isolation. After they had successfully developed a
practical airplane in Dayton (1905), they stopped flying to
protect their secrets and didn’t fly again until they had firm
contracts for the sale of their airplane in May 1908.
A letter to Glen Curtiss from Orville in July 1908 initiated
the patent struggle. Glen Curtiss had just won a trophy worth
$2,500 given by the Aero Club of America for a flight over a
mile long. Curtiss flew an airplane named the June Bug sponsored
by the Aerial Experimental Association (AEA), a private
organization formed by Alexander Graham Bell in 1907. (Archives:
Alexander Graham Bell is No Friend of the Wright Brothers)
Orville warned Curtiss on July 20, "We do not intend
to give permission to use the patented features of our machines
for exhibitions or in a commercial way." He continued, "If
it is your desire to enter the exhibition business, we would be
glad to take up the matter of a license to operate under our
patents for that purpose."
Curtiss replied that contrary to newspaper reports, he is not
intending to enter the exhibition business and that the matter
of patents has been referred to the AEA.
Curtiss was not too concerned about the Wrights because Bell
had assured members of the AEA that the ailerons used on the
June Bug, instead of wingwarping, would circumvent the Wright’s
patent. It was Bell who first suggested the use of ailerons.
Bell’s assumptions were wrong, the Wrights’ patent
recognized that lateral control could be obtained by surfaces
such as ailerons. Bell may even have gotten his idea from the
The Wrights were acquainted with Curtiss. They first met him
in person in September, 1906 while Curtiss was in Dayton
accompanying Captain Thomas S. Baldwin, who was giving
exhibition flights at the Montgomery County Fairgrounds with a
dirigible balloon on which he was using a motor built by
Curtiss and Baldwin spent several days with the Wrights
during which time the Wrights showed them photographs of their
flights and answered a number of questions. Curtiss was excited
with the disclosure, remarking that it was the first time he had
been able to believe anyone had actually had flown with a flying
machine. Baldwin would later become a member of the AEA with
In January 1908, another member of the AEA requested and
received additional valuable information from the Wrights. Lt.
T. Selfridge, assigned to the AEA by the army, wrote a letter to
the Wrights seeking advice on the construction and performance
of their machines.
Despite his assurances to the contrary, Curtiss continued
unabated his aeronautical activities. In June 1909, Curtiss
built a new machine, the "Golden Flyer," an obvious
play on the Wright Flyer. He sold it to The Aeronautical Society
of New York for $5,000. He also departed the AEA and formed a
new company in partnership with another aviation pioneer,
Herring, too, had first-hand knowledge about the Wrights’
activities. He had been present at Kitty Hawk during the some of
the Wright’s experiments with the 1902 Glider and later
claimed that he had insight into the Wrights’ techniques.
(Archives: Augustus Herring, No Friend of the Wrights.)
It soon became obvious to the Wrights that Curtiss had no
intention to negotiate with them for the use of their patents.
Wilbur, therefore, initiated two actions in August 1909. First,
he filed a bill of complaint enjoining Curtiss and the
Herring-Curtiss Co. from the manufacture, sale or exhibition of
airplanes. Second, he filed a suit to prohibit the Aeronautical
Society of New York from operating the Golden Flier because it
utilized features that were an infringement of their patents.
These actions began what is commonly referred to as the patent
Judge John R. Hazel of the Federal Court in Buffalo was
assigned the case. Until such time as Hazel issued a restraining
order, The Herring-Curtiss Co., was free to operate and Curtiss
was free to continue flying.
In November 1909, the American Wright Co. was formed. Wilbur
was president and Orville was a vice-president. The company
became the new owner of the Wright patents and assumed the
responsibility of managing the patents including legal expenses.
The Wrights were hopeful that with the formation of the new
company they could now be free to pursue their first love,
research. Unfortunately, this would never come to pass.
Initially, the court actions went smoothly for the Wrights.
On January 3, 1910, Judge Hazel granted an injunction against
Herring-Curtiss that the Wrights had sought.
During the hearing, the judge gave no credence to Herring’s
lawyer ridiculous claim that the Herring-Curtiss fame rested on
their skill as "aeroplane chauffeurs." Curtiss filed
an appeal, but the company, already in poor financial shape, was
forced into bankruptcy.
For the first six months of 1910 the Wrights enjoyed an
effective monopoly in the airplane business in America.
It wouldn’t last long.
The Wrights offered to drop their suit against Curtiss if he
would take out a license and make a settlement for past
infringement. Curtiss decided he was better off with his
strategy of delaying tactics.
Curtiss personally came out of the bankruptcy in better shape
than before. He rid himself of Herring and purchased back the
factory from the Herring-Curtiss trustees, forming the Curtiss
Aeroplane and Motor Co. Not only that, his appeal of the
injunction was granted in June so he was back in business
During this time period, the Wrights also sued foreign
aviators who were participating in exhibition flying in America.
Only one came to trial. The Wrights won and were awarded $1700.
Next: Wilbur Wright Dies.