"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.""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.
Rudder Used Only For Steering.
"When defendants' balancing surfaces are moved they present equal angles of incidence to the normal rush of air and equal resistances, at each side of the machine, and there is therefore no tendency to turn around a vertical axis as is the case of the machine of the patent, consequently no reason or necessity for turning the vertical rear rudder in defendants' machine to counteract any such turning tendency. At any rate, whatever may be the theories in regard to this matter, the fact is that the operator of defendants' machine does not at any time turn his vertical rudder to counteract any turning tendency clue to the side balancing surfaces, but only uses it to steer the machine the same as a boat is steered."Aero Club Recognizes Wrights.
The Aero Club of America has officially recognized the Wright patents. This course was taken following a conference held April 9th, 1910, participated in by William Wright and Andrew Freedman, representing the Wright Co., and the Aero Club's committee, of Philip T. Dodge, W. W. Miller, L. L. Gillespie, Wm. H. Page and Cortlandt F. Bishop.
At this meeting arrangements were made by which the Aero Club recognizes the Wright patents and will not give its section to any open meet where the promoters thereof have not secured a license from the Wright Company.
The substance of the agreement was that the Aero Club of America recognizes the rights of the owners of the Wright patents under the decisions of the Federal courts and refuses to countenance the infringement of those patents as long as these decisions remain in force.
In the meantime, in order to encourage aviation, both at home and abroad, and in order to permit foreign aviators to take part in aviation contests in this country it was agreed that the Aero Club of America, as the American representative of the International Aeronautic Federation, should approve only such public contests as may be licensed by the Wright Company and that the Wright Company, on the other hand, should encourage the holding of open meets or contests where ever approved as aforesaid by the Aero Club of America by granting licenses to promoters who make satisfactory arrangements with the company for its compensation for the use of its patents. At such licensed meet any machine of any make may participate freely without securing any further license or permit. The details and terms of all meets will be arranged by the committee having in charge the interests of both organizations.
