Wrights Obtain an Injunction.
In January, 1910, Judge Hazel, of the United States Circuit Court, granted a preliminary injunction restraining the Herring-Curtiss Co., and Glenn H. Curtiss, from manufacturing, selling, or using for exhibition purposes the machine known as the Curtiss aeroplane. The injunction was obtained on the ground that the Curtiss machine is an infringement upon the Wright patents in the matter of wing warping and rudder control.
It is not the purpose of the authors to discuss the subject pro or con. Such discussion would have no proper place in a volume of this kind. It is enough to say that Curtiss stoutly insists that his machine is not an infringement of the Wright patents, although Judge Hazel evidently thinks differently.
What the Judge Said.
In granting the preliminary injunction the judge said:
"Defendants claim generally that the difference in construction 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; the 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 rudders are secured to the forward stanchion at the extreme lateral ends of the planes and are adjusted midway between the upper and lower planes with the margins extending beyond the edges; that in moving the supplementary planes equal and uniform angles of incidence are presented as distinguished from fluctuating angles of incidence. Such claimed functional effects, however, are strongly contradicted by the expert witness for complainant.
Similar to Plan of Wrights.
"Upon this contention it is sufficient to say that the affidavits for the complainant so clearly define the principle of operation of the flying machines in question that I am reasonably satisfied 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 stimultaneously tilted or lowered. I am also 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 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 improvements, 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.
Variance From Patent Immaterial.
"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, Fig. 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 surface 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."