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Aviation History
1910
1910 - 0287.PDF
balancing surfaces are absolutely flat or are slightly curved. Herring, however, made an affidavit in which the following statement occurs: "In my 1894 gliding machine I found it necessary to use the vertical rudder in preserving a straight course, when I corrected the side equilibrium by using the auxiliary surfaces," and this statement seems to contradict the Curtiss affidavit. are found in defendants' machine performing the same functional result. There are dissimilarities in the defendants' structure— changes of form and strengthening of parts—which may be improve ments, but such dissimilarities seem to me to have no bearing upon the means adopted to preserve the equilibrium, which means are the equivalent of the claims in suit and attain an identical result. Anticipation of the Wright Patent. In the Paulhan case, which was also decided in favour of Wright on February 17th, by Judge Hand, of the United States Circuit Court, Southern District of New York, a considerable amount of evidence as to the different methods of manipulating the two machines in practical flight was brought forward ; but the defendants appeared to rely mainly upon being able to prove anticipation of the Wright claims. Judge Hand dealt seriatim in a most painstaking manner with each The Wright Seventh Claim, Judge Hazel, of the Circuit Cuurt ot the United States, in Buffalo, who granted on January 3rd, 1910, a preliminary injunction to the Wright Co restraining the Herrin^-Cuniss Co. and Glenn H. Curtiss from manufacturing, selling, or usi ig for exhibition purposes the Curtiss aeroplane, quoted, in his summing up, the seventh claim ot the Wright patent as the most important of those under consideration. This claim is as follows :— " 7. In a flying machine, the combination with an aeroplane, and means for simuliant-ously moving the lateral portions thereof into different angular relations to the normal plane ol 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 where by said rudiler 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." Judge Hazel's Summing-up. On the question of the difference or otherwise between the use of balancing planes and wing wjrping, which, as we have explained above, is the crux of the situation, the J udge makes the foil <wing observations :— " Upon this contention it is sufficient to say that the affidavits for the complainant so clearly define the principle of operation of the flying machine in question that I am reasonably sati fied that there is a variableness of the angle of incidence in the machine of defendants which is produced when a supplementary plane on one side is tilted or raised and the other simultaneously tipped or lowered. I am als 1 satisfied that the rear rudder is turned by the operator to the side having the least angle of incidence and that such turning is done at the time the supplementary planes are raised or depressed to prevent tilting or upsetting the machine. On the papers presented I incline to the view, as already indicated, that the claims of the patent in suit should be broadly construed ; and when given such construction, the elements of the Wright machine suggestion of anticipation; and although he was of course only able to do so from the the American patent law point of view, his remarks are well worthy of study by British readers. They included designs or inventions by the following, among others : D'Esterno, Le Bris, Mouillard, Mattullath, Zahm, Ader, Bechtell, Graper, Johnson, Stanley, and Marriott. Ader's Avion (see FLIGHT, Vol. I, p. 10) the Judge considered to be " the most serious attack upon the novelty of the patent in suit," but his decision was to the effect that:— " If the invention be a combination at all, and not an aggregation, it is such solely by virtue of the apprehension of that vital relation of the parts, which Ader conclusively shows he did not have. Nothing but his description could more clearly show that with him the three (the two wings and the rudder) were in merely non functional aggregation. Nothing can be more clear that in the (Wright) patent they are understood as in inevitable combination." Judge Hand's Summing Up. Summing-up, Judge Hand observed :— " From the showing made I cannot doubt that the complainants (the Wrights) first put into any practical form the system of three rudder control. ... I cannot find that anyone prior to their patent had flown with the patented system, and that the changes from the specifications which the defendant (Paulhan re the Farman machine) had made are no more than equivalents, which do not relieve him from infringement." We should like to point out, in conclusion, that Judge Hand's reference to the "three rudder control" introduces the elevator, which is an essential organ of the Wright biplane and is an essential feature of the Wright patent, but was not much involved in the argu ments of the contesting parties in these lawsuits. With reference to the importance of the cases themselves, and more particularly with their relationship to the situation in England, it is not our place to make any comment at the present time. But we feel that the intrinsic merit of the technical points discussed and the undoubted logic of the Judges who tried the cases—from an American standpoint—is more than sufficient warranty for the amount of space that we have devoted to the subject. 285
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