177 F. 257 | W.D.N.Y. | 1910
A preliminary injunction is sought herein against the defendants, the Herring-Curtiss Company and Glenn H. Curtiss, for infringement of United, States letters patent No. 821,393, granted May 22, 190(5, on application filed March 23, 1903, for improvements in a flying machine to Orville Wright and Wilbur Wright, of Dayton, Ohio, and subsequently assigned to the complainant corporation. The title to the patent is not in controversy. The bill of complaint alleges that the patentees were the first inventors of what is commonly known as a heavier than air flying machine. Such machines are sustained in their aerial movements by either one or two planes or surfaces which travel through the air in a forward ascending or descending course at an angle of incidence, and may be driven or propelled by mechanical power or force of gravity. The objects of
“(7) In a flying machine, the combination with an aeroplane, and means for simultaneously moving the lateral portions thereof into different angular relations to the normal plane of the body of the aeroplane and to each other, so as to present to the atmosphere different angles of incidence of a vertical rudder, and means whereby said rudder is caused to present to the wind that side thereof nearest the side of the aeroplane having the smaller angle of incidence and offering the least resistance to the atmosphere, substantially as described,”
The essential elements of such claims are an aeroplane or supporting surface, the lateral portions of which are capable of adjustment to attain different angles of incidence and a vertical rudder in the rear of the machine. Claims 14 and 15 include as elements a horizontal rudder which is positioned forward of the machine and means for raising and lowering it so as to present its upper or under side to the pressure of the wind. The questions of the scope of said claims, infringement, and the propriety of granting an injunction herein are contested by the defendants.
In a flying machine of the biplane type, with which we are here concerned, the aeroplanes are connected together by upright stanchions extending lengthwise on the extreme front and, rear portions thereof, and are fastened on top and bottom of the planes by universal joints so as to permit the planes or surfaces to yield to pressure and incline upward or downward at their lateral edges or marginal extremities when the cord or rope fastened to the cradle is manipulated by the aviator. This lateral yielding, warping, or distorting of. the aeroplane is the essential feature by which the equilibrium is secured. Its importance cannot be overestimated, as it is shown that long before the Wright invention a method was sought by which equilibrium in mechanical flying could be secured and maintained. Not only the conception of the idea of securing and maintaining equilibrium in the air, but the appliances — the dynamic cause to achieve the result — originated in the minds of the patentees, and took shape and form in the evidently simple method of slightly turning up and down the lateral ends or margins of the planes, thus securing different angles of incidence. The unsurmountable obstacle with which prior inventors in this art strug-gled for years was the precipitate unbalancing or upsetting of the apparatus and such prior flying machines were therefore incapable of flights with any appreciable degree of success. The affidavits indicate that the patentees did not use the means or identities of prior flying machines, but solved the problem of maintaining equilibrium or lateral and front and rear balance by the introduction of new and practical elements and became pioneers in the field of flying machines’of the so-called heavier than air type. True, some of the ele
The Wright patent is unadjudicated, but such fact will not deprive the complainant of its right to enjoin infringement save where the prior art shows sufficient ground to doubt the validity of the patent. Palmer v. Wilcox Mfg. Co. (C. C.) 141 Fed. 378. But in the present case public acquiescence is claimed. It appears that machines embodying the invention in suit have made notably successful flights in France, Germany, and the United States. The first aerial flight to which the attention of the public was attracted was had at Kitty Hawk, N. C., in December, 190:5, when the Wright machine using a 12 horse power motor weighing 200 pounds demonstrated its ability to maintain its balance and readily turn to the right or left and ascend or descend. The newspapers of the country heralded as marvelous the success of the patentees, and published wide that human flight had been made possible and that the patentees were the first in the annals of the world to achieve success with a heavier than air flying machine. Public recognition of tlieir success was subsequently made by scientific institutes and academies of high repute in this country and abroad. Medals were presented to the inventors by Congress, by the republic of France and by various areonautical societies of Europe and America. Such testimonials are entitled to weight in support of the presumption of validity and the practical utility. National Co. v. New York Co. (C. C.) 46 Fed. 114; Thompson Co. v. Two Rivers (C. C.) 63 Fed. 120. Moreover, in this connection it may he instanced as bearing upon the novelty and utility of complainant’s machine that the defendant Curtiss and the affiant Herring, both officers of the defendant corporation, obtained detailed information prior to the construction of the defendant’s machine, as to experiments and pressure of wind on curved and flat planes and mode of maintaining equilibrium in flights, the former through correspondence passing between the patentees and the late Uieut. Selfridge in January, 1908, and the latter from personal observation and investigation while at the camp of the patentees at Kitty Hawk, N. C., where the earlier Wright experimental flights were conducted, and subsequently both Curtiss and Herring practically admitted that in complainant’s machine the problem of equilibrium appeared to have been solved. But in the answering affidavit Herring asserts that he had considered that the Wright invention was limited to the lateral warping of the planes, and not that it covered broadly the feature of lateral balancing. This brings me to the question of whether defendants’ machine infringes that of complainant.
Defendants claim generally that the difference in cons! ruction of their apparatus causes the equilibrium or lateral balance to be maintained and its aerial movement secured upon an entirely different principle from that of complainant; that defendants’ aeroplanes are curved, firmly attached to the stanchions and hence are incapable of twisting or turning in any direction; that the supplementary planes or so-called
Defendants further contend that the curved or arched surfaces of the Wright aeroplanes in commercial use are departures from the patent, which describes “substantially flat surfaces,” and that such a construction would be wholly impracticable. The drawing (figure 3), however, attached to the specification shows a curved line inward of the aeroplane with straight lateral edges, and considering such drawing with the terminology of the specification, the slight arching of the surfaces is not thought a material departure; at any rate the patent in issue does not belong to the class of patents which requires narrowing to the details of construction.
The Mattullath application for patent: This was an abandoned application for a flying machine filed in the patent office on January 8, 1900, and though it was declared by the inventor in the specification that he believed he had discovered a method of maintaining equilibrium in a flying machine, such application cannot be given weight on this application in the absence of satisfactory testimony of prior invention or discovery. As the record stands it can only be regarded as an unsuccessful experiment. The Corn Planter Patent, 90 U. S. 181, 23 L. Ed. 161. There are a number of adjudications called to my attention holding that an abandoned or rejected application is not a prior publication. It is not claimed that the patentees knew of its existence or had any information regarding the claimed discovery of Mattullath.
It appears that the defendant Curtiss had notice of the success of the Wright machine and that a patent had been issued in 1906. Indeed no one interfered with the rights of the patentees by constructing machines similar to theirs until in July, 1908, when Curtiss exhibited
The requirements in patent causes for the issuance of an injunction pendente lite — the validity of the patent, general acquiescence by the public, and infringement by the defendants — are so reasonably clear that I believe it not improbable that complainant may succeed at final hearing, and therefore, the status quo should be preserved and a preliminary injunction granted.
So ordered.