Issue link: http://read.dmtmag.com/i/549063
I DA U N I V E R S A L J u l y -Au g u s t 2 0 1 5 11 LEGAL LINE Robert W. McIntyre IDA Association Legal Counsel Continued on page 54 S hortly a er World War I, the Patent Offi ce and Courts faced a deluge of patent litigation from newly emerging industries about key patents claiming comprehen- sive rights to fundamental inven- tions, such as the automobile and the airplane, as well as patents on railroad equipment, electrical devices, and other inventions that truly had never been seen before. Some of these lawsuits were so critical to the emerging industries that the patent holders and their challengers were willing to spend whatever it took to protect their legal interests and, o en, their very survival as viable businesses. In the rear-view mirror, many of these intense and bitter litigations seem simply nonsensical, but at the time, they were front-page news around the world. Two best known and far-reaching cases were the Wright brothers and George Selden. e former were univer- sally known, and the latter was briefl y famous as the claimed inventor and patent holder for the automobile. e details are even more interesting as, on one hand, the claims of the Wrights to the airplane were very narrow, but Selden's were so broad as to be nonsensical, both of which were fatal fl aws. To understand these cases and the parties' positions, a short primer on patent law is required. To obtain a patent, an inventor basically has to claim an inven- tion that is arguably useful, has not been invented by anyone before, and has not been patented New World Order and IP360 in some form previously. In times of the emerging industries above, the patent offi ce was confronted by what they came to call "pioneer patents," simply, inventions in completely new fi elds of technology that had never existed before in any form. In addition, in many cases, the inventors themselves did not possess enough fundamental knowledge of their inventions to adequately explain them in court, and, of course, the judges of the times were similarly in the dark. Looking fi rst at the Wrights, it is likely they were the fi rst to accomplish truly powered fl ight – not on that fi rst fl ight where the "fl yer" was launched off a catapult into a 50 kph headwind, but in many successive fl ights achieved a er they were able to double and triple the power of their engine. e problem came when they fi led and obtained a patent on their airplane, which was either a patent on the "inven- tion" of a powered, man-carrying fl ying machine or nothing more than a patent on one aspect of the machine's construction and operation. e Wrights' legal claim was about two interacting elements of the way the fl yer was controlled: fi rst, by a side-to-side movable fl ap at the tail of the cra and, second, by a means of actually warping the outer several feet of each wing up and down by wires to make it "bank" into turns while fl ying. Other contemporary aviator-inventors thought diff erently, especially Glenn Curtiss, who decided that "warping" anything to make it fl y made no engineering sense, so he invented separate movable surfaces between, and later incor- porated into, the wings, which moved up and down to bank the aircra . e Wrights and their succes- sive armies of lawyers sought to prohibit anyone from making or even fl ying any powered aircra , with warping wings or otherwise, without paying the Wrights a fee for each cra and, incredibly, for each fl ight. Needless to say, this was ignored by most early aviators and airplane makers, especially the fearless and iron-willed Glenn Curtiss. e end result was that the Wrights eventually went out of business, having spent their last dime on lawyers, while the competition litigated back, designing and selling better and faster planes that did not warp their wings. ese variations on the Curtiss concept are still used today on every plane that fl ies. e Wrights bet everything on not only winning, but also getting their fees paid back as well. History shows it was a bad bet, indeed. Selden's story was even more tragic. Early successes in