09/04/2018

The Wright Brothers: Would Their Patent Survive Today’s Patent Law Rigors? Doubtful


The Wright Brothers: Would Their Patent Survive Today’s Patent Law Rigors? Doubtful

Charles Shifley

“The patentees, Orville and Wilbur Wright, were the first men to actually fly!” So begins an appellate brief in perhaps Orville and Wilbur Wright’s most famous patent infringement case, Wright Co. v. Herring-Curtiss Co., 211 F. 645 (2nd. Cir. 1914). Imagine getting to write a line “the first men to ... fly!” exclamation point included, as the first line of a brief for clients.

On the strength of the facts, and excellence of legal work, the court in the Wright case affirmed as valid the central U.S. patent of the Wrights, declared the Wrights to be pioneers in flight, and resolved that airplane wing ailerons and a tail rudder were part of their invention. Creative legal defenses, such as that a rudder of the Curtiss flying machine was not an infringement because it was only used sporadically, were put to rest memorably: e.g., “a machine that infringes part of the time is an infringement.”

Flight by the Wright brothers was a dramatic change in the history of the world through invention. That, and the fact that they were driven in part by patent rights, leads to an interesting question in our modern age. Would their same patent survive the rigors of today’s patent laws in their case against Curtiss?

100 J. Pat. & Trademark Off. Soc’y 12(2018)

If you would like to read the full article and other published articles, subscribe to the Journal of the Patent and Trademark Office Society, for more information click here.

© 2000-2014, Journal of the Patent & Trademark Office Society
Disclaimer & Privacy Policy