"June Bug" First Infringement.
Referring to the matter of priority, the judge said:
"Indeed, no one interfered with the rights of the patentees by constructing machines similar to theirs until in July, 1908, when Curtiss exhibited a flying machine which he called the 'June Bug.' He was immediately notified by the patentees that such machine with its movable surfaces at the tips of wings infringed the patent in suit, and he replied that he did not intend to publicly exhibit the machine for profit, but merely was engaged in exhibiting it for scientific purposes as a member of the Aerial Experiment Association. To this the patentees did not object. Subsequently, however, the machine, with supplementary planes placed midway between the upper and lower aeroplanes, was publicly exhibited by the defendant corporation and used by Curtiss in aerial flights for prizes and emoluments. It further appears that the defendants now threaten to continue such use for gain and profit, and to engage in the manufacture and sale of such infringing machines, thereby becoming an active rival of complainant in the business of constructing flying machines embodying the claims in suit, but such use of the infringing machines it is the duty of this court, on the papers presented, to enjoin.
"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 if not probable the complainant may succeed at final hearing, and therefore, status quo should be preserved and a preliminary injunction granted.
"So ordered."
Points Claimed By Curtiss.
That the Herring-Curtiss Co. will appeal is a certainty. Mr. Emerson R. Newell, counsel for the company, states its case as follows:
"The Curtiss machine has two main supporting surfaces, both of which are curved * * * and are absolutely rigid at all times and cannot be moved, warped or distorted in any manner. The front horizontal rudder is used for the steering up or down, and the rear vertical rudder is used only for steering to the right or left, in the same manner as a boat is steered by its rudder. The machine is provided at the rear with a fixed horizontal surface, which is not present in the machine of the patent, and which has a distinct advantage in the operation of defendants' machine, as will be hereafter discussed.
Does Not Warp Main Surface.
"Defendants' machine does not use the warping of the main supporting surfaces in restoring the lateral equilibrium, but has two comparatively small pivoted balancing surfaces or rudders. When one end of the machine is tipped up or down from the normal, these planes may be thrown in opposite directions by the operator, and so steer each end of the machine up or down to its normal level, at which time tension upon them is released and they are moved back by the pressure of the wind to their normal position.