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The Wright Brothers: Pioneers of Patent Trolling (time.com)
121 points by MrXOR 11 days ago | hide | past | web | favorite | 46 comments

Edison and the light bulb are another good example. The reason Philips became so big was because the Netherlands had no patent law for half a century and they just copied everyone else's innovations, something the company tries to hide nowadays since they're in the business of patent trolling themselves. Many of the people Edison put out of business through patent trolling decided to work for Philips. Soon the Dutch light bulbs were better and cheaper than anyone else's.

EDIT: In fact, the light bulbs became so reliable that light bulb manifacturers decided to design worse light bulbs for the sake of profit, creating the first known example of a cartel specifically formed with planned obsolescence in mind[0]. But that's another story.

[0] https://en.wikipedia.org/wiki/Phoebus_cartel

Ditto Lego.

Lego is not from Holland, rather from Denmark, so why "ditto"?

Because they took someone else's design, and then sued everybody that tried to use 'their' design. They attempted to at least put a legal figleaf on this by acquiring that company for a pittance many years later.


LEGO should really acknowledge that what they did was wrong.

Thank you: had not known of this.

It was a blatant and extreme rip off of someone else's work too. They copied every single detail of branding, marketing, packaging and product:


This article is kind of pop science history. Here is the Wright Patent: https://patentimages.storage.googleapis.com/1c/17/b5/e1f4968...

The patent disclosed the theory of using ailerons for control. Claim 1 refers to “lateral marginal portions” of the wing “capable of movement to different positions above and below the normal plane of the airplane.” That’s an aileron.

The embodiment in the patent happened to use a warping wing, but as a matter of physics and the patent drafting, the invention was using such lateral movable surfaces for control, not a particular way of building such a surface.

Additionally, the article fails to note the importance of patents to the other side. The Arial Experimental Association was bankrolled by Alexander Graham Bell. Bell had relied heavily on patents to secure investor capital that he used to build his business and eventually his research lab. See: http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?art.... (The same is true, incidentally, for Edison.)

One of the fictions we indulge is that invention is all about inventors. In fact, it’s at least as much about investors. The aviation patent wars is much easier to understand if you look at the business and investment structures that created American airplane companies in the first place: https://poseidon01.ssrn.com/delivery.php?ID=4210000891220850...

I had that penny dropping epiphany years ago, and it's great to see it repeated here: patents are for the investor class who are accustomed to dealing with pieces of paper that represent value: stocks, bonds, mortgages, warrants, copyright, trademarks. Patents are really an attempt to fit what we do into their world of value-paper. The fact that there's a significant impedance mismatch underlies all the problems with patents.

That sounds interesting. Could you elaborate on that for those of us who might get lost in the terse jargon there?

Hmm...not sure how to expand on what I said. Perhaps an example will help:

If you go to a bank asking to borrow money they might ask "what collateral do you have to secure a loan?". If you own a house, they would ask you to bring in the property title document to prove to them that you own it (or some title company would do that work for them).

Patents can serve a similar purpose: you want to borrow money from an investor to develop a product idea into a commercial product: they might say "what patents do you have?". To them, the patent document serves a similar purpose to the property title in the bank loan case: a piece of paper that makes them think there's something of value that they can ultimately take from you or sell if the company doesn't succeed, or at least something that gives them a warmer and fuzzier feeling that if you were just saying "Trust me I know what I'm doing".

>That’s an aileron.

I'd argue it's not. (But I still believe the patents other claims, and as a whole was obviously violated.)

You can't go of of the language of today to judge the claim. After all, the Wright brothers use "flying machine" to describe what we call an "airplane", and the term "aeroplane" to describe what we call a "wing".

Remember, the method and implementation is what's patentable, not the concept.

It doesn't really matter if we'd call a warped wing an aileron or not, or that it accomplishes the same objective.

It only matters how the implementation of the invention is described, and what elements are claimed (and in what combinations).

Edison was later backed by the big venture capitalists of his day -- JP Morgan, Vanderbilts, etc.

The difference is the Wright Brothers actually did invent controlled flight. They did not buy or file some obvious patent.

The aileron is a clear derivative of wing-warping. It's just using a hinge instead of bending the structure. While the Wrights did abuse their position to wage an ugly patent war, they were not patent trolls.

Well they kind of were. They had a patent on a somewhat crappy method of warping wings. They then argued that superior inventions that produced the same result (roll control of an aircraft) somehow infringed their patent. This sort of postfacto over extension of a patent is pretty much what patent trolls do. Just having a working invention of some sort does not immediately disqualify one from being a patent troll.

It all comes down to terminology. Which is interesting, since the wright brothers use the term flying machine to describe what we call an airplane, and aeroplane to describe what we call a wing.

Both inventions can be patentable, and I wouldn't consider either a patent troll.

One of the elemental claims (#3) of the wright brothers patent was simply changing the shape of the wings relative to one another to produce roll. This claim is clearly violated by a hinged alerion, if it's described as a single hinged-wing.

Without seeing the hinged-design patent, I can only speculate. But if it's described as a method of changing wing shape, it clearly violates #3. If however, they were to describe it as two connected and adjacent wings, they might not violate claim #3. But they'd still be violating other claims, including that of using a wing generating lift.

But... And this is key...

You can legally patent an improvement (hinged movement) to an invention (wing-shape based roll control) covered by someone else's patent. A derivative work is fine as long as it meets all other requirements of a patent, including being non-obvious and novel.

However, a patent doesn't give you license to produce that invention that you patented; it only allows you to prevent others from producing items incorporating the elements claimed within your patent.

So the hinged alerion inventor would still need a license to build an aircraft with wing-shape-changing based roll control, and the wright brothers would need a license to incorporate hinges into their design.

Everyone's invention is protected.

Though mounted separately and not on the wings:

"The modern aileron was invented and patented by the British scientist Matthew Piers Watt Boulton in 1868, based on his 1864 paper On Aërial Locomotion."


Boulton's patent covers vanes attached to the wingtips, hinged at their center, and used to keep the wing stable about the roll axis. He describes a weight hanging from the center of the airplane attached to cables that rotated the vanes to make it stable.

The weight-hanging thing is clearly unworkable, as it would be gyrating and swinging about in the breeze.

Wing-warping and ailerons are far more workable, as the control force is in proportion to the amount of their deflection. This makes control natural. The vanes, being hinged on their centerline, have no such feedback.

As far as I know, no airplane has ever used such a device. I wouldn't call them "modern" ailerons at all. None of the Wright's contemporaries used it, including Charles Manly, the pilot of Langley's Aerodrome which had no longitudinal control at all, yet later argued that Boulton invented it.

I think there's a LOT to be said for inventing and building a system that actually works and flies, rather than a sketch on a piece of paper.

All modern aircraft can trace their designs right back to the Wright Flyer.

This is the approach I think I would argue, if in their shoes, as it's not dependent on changing the shape of the wing.

That said, another one if the Wright Brothers claims was adjusting angle of incendence of a lift generating surface to steer (calling the tail-horizontal-vertical-stabilisers "rudders").

Adding the aileron, in addition to the wing and tail, would probably qualify as a patentable claim. But I suspect the method itself would still fall within the Wright brothers claims for either the wings or the tail. But maybe not, as long as the aileron doesn't generate lift, which is a completely different argument if semantics.

Uh, yeah they were:

> They also proved themselves pioneers of what’s sometimes known as patent trolling: the controversial modern practice of suing competitors for infringements that fall beyond the scope of one’s patent.

The problem here should be obvious. The author does not know the definition of patent trolling. Patent trolls buy the patents they enforce. They do not make them.


I think that is focusing on a less important evil in the definition of it (although still significant).

Let's say that the main issue with patent trolling is that it is basically rent-seeking with patents.

If we agree on that, then choking out competition and stifling innovation through patents should count as a "flavour" of patent trolling, regardless of who invented the patent.

Since that seems to go both against the concept of a free market as well as against copyleft ideologies, I would expect that to be the one thing most can more or less agree on as an issue with patents, and that it is an essential element of patent trolling.

Mind you, I'm not naively saying patents are inherently bad, because without them big companies can just copy small innovators and push them out of business through economies of scale. I honestly don't know what the right solution is here.

You think small innovators can win against big corporation who also have more lawyers and more patents?

You have a good point. But again: I don't know what the best answer to this problem would be. Does a lack of patents favour diversity more or not?

> because without them big companies can just copy small innovators and push them out of business through economies of scale.

They pretty much do anyway.

The patent system doesn't work and should be simply abolished.

To be honest, based on what I've heard about it my impression is that the way the US patent office handles patents is a large part of what enables patent trolls (here used as an umbrella term for all patent abuse discussed so far) to do their thing.

Namely that it's relatively easy to get a patent, and that the validity of it is then tested in court. However, often the threat of going to court is what is abused by patent trolls.

In most other countries getting a patent is the hard part.

Or the author does know the definition of patent trolling, but is ignoring it to serve an agenda.

That's not how I'd define patent trolling, honestly. I'd include some restrictions on the patent itself, and how novel it was.

What the Wright brothers did was like planting a tree and then claiming that the fully grown tree came from what they did. Patent trolling is like adding a leaf to an existing tree and then claiming the entire branch it's sitting on.

I think the main distinction of patent trolls is that they don't attempt to develop their product, and for related reasons generally don't do any substantive research to acquire their patents

Not sure the Wright brothers can be accused of those particular issues

The definition of a patent troll is hard. While your definition is currently the common definition, I believe we have to look how we reached that definition.

The first question we have to ask is: How do we not like patents to be used?

> its impact on the state of American aviation was indisputably negative.

We don't want patents to be used in a way that deters further research and advancements in that field.

Can we determine if a way of use will do that in the future? Unfortunately, as we can't see into the future, we don't know.

So we use the next best thing: We try to find patterns that strongly suggest that someone is abusing a patent.

And the pattern that we found is: People who just buy patents (sometimes for just $1) and don't produce their own are more likely to abuse patents. And that's how we came to today's definition.

But for the past, we can answer the second question. And we should use this as definition if possible.

It’s rare for a patent (or airplane) to change hands for literally $1.

It’s common for them to change hands for “$1 plus other valuable consideration” to mask the true price. Sometimes that “OVC” might be 999,999 other dollars for example.

That may be the wrong question to ask. The question we might want to ask: do patents incentivize innovations or not? In what way they do and in what they don't.

>I'd include some restrictions on the patent itself, and how novel it was.

I agree in principle, but back then, the granting of a patent was a sort of de-facto legal recognition of the novelty. (Whereas today, it's just recognition that you can fill out the forms correctly.)

There wasn't really the need to litigate that aspect of a case. If the patent was issued, it was legally presumed to be novel.

Which is a main part of the reason why patent trolling has gotten worse: lack of legal certainty that any particular patent is valid.

> back then, the granting of a patent was a sort of de-facto legal recognition of the novelty.

There is still a de jure presumption of validity for an issued patent, but it only means that when a patentee sues an alleged infringer, the patentee doesn’t have to first prove the patent is valid. An accused infringer will usually challenge the validity of the patent, it just won’t happen at the earliest stage of the trial.

> how novel it was.

There are no degrees of novelty. An invention is ether novel (new, never been done before) or it’s not.

Of course there's degrees of novelty. How could there not be?

In patent law, novelty only means new (never done before). Patent novelty has nothing to do with the cleverness, inventiveness, or importance of an invention.

A patent must also be non-obvious, which is where many of the other inventive characteristics fall.

That isn't patent trolling, that is protecting a patent.

Patent trolling is using IP with the intention of expoiting outdated laws and an ignorant court system to extort people for money.

I've never seen the Wright brothers beaten up like this. One brother died trying to improve their invention, and the other died in extreme poverty in a small apartment after suffering from a car accident for years. He had received tons of awards from the industry, but those were meaningless to him. He was more interested in documenting the history of his brother's contributions. The general vibe of this thread is incredible to me.

I am not a fan of patents, mainly because of issues surrounding eligibility, implementation and abuses. (edit: which would be all fairly straight forward to re-adjust and enforce, if there was a will to do so in the legislature)

I do, however, reserve the term "patent troll" to places who practice acquiring patents and suing others based on those patents, as a way to make money, but don't actually build anything with those patents. I do not understand why it is even legal to do that, that is most certainly easy to fix (edit: I reached a point where I think greedy people = psychopaths, destroyers of the world).

So the Wright Brothers, the Edison, the Christiansen, and many others, actually did build from their invention. They did use their patent to prevent others from using it, which is basically what a patent grants its owner. Patents don't give you the right to proceed with your invention, they give you the right from excluding others from doing your invention.

> the Wright brothers waged a prolonged, embarrassing and largely unsuccessful battle against other early aviators over who owned the aeronautical principles that made flight possible

Whose to say this wasn't at least partially the reason the Wright brothers are cemented in history? I'd argue that their names being attached to so much litigation strengthened the "Wright Brothers invented flight" association in the minds of historians (which may have even been their actual end-goal with all this).

Obligatory further reading on this subject is Maciej's blogpost [1]

[1] https://idlewords.com/2003/12/100_years_of_turbulence.htm

I am saddened by seeing such a flippant characterization. Patent troll is literally defined to be "a company that obtains the rights to one or more patents in order to profit by means of licensing or litigation, rather than by producing its own goods or services.".

Inventing a successful aircraft at the time required getting many things right at once, which they tackled one at a time over several years. They invented the modern wind tunnel. They were the first to systematically test and accurately measure lift-to-drag ratios for a variety of airfoil shapes. They built an aluminum engine from scratch (the first use of aluminum in aircraft), to deal with the lack of engines with sufficient power-to-weight ratios. They don't get much credit for this, but they invented modern propeller theory!!! They were the first to realize the importance of control, when most others prioritized power. They invented the first viable aerodynamic control scheme. There might be even more I am omitting, but know that they did this all on their own. In fact, they were offered financial support from Octave Chanute, but refused, as they did not want to be tempted to quit their successful bicycle business. Even Samuel Langley, a highly reputed, generously-funded, government-backed contemporary, failed. Flight was a really hard problem that required getting many things right at once.

What's more, they shared their early successes and discoveries with an un-powered glider with others at an aeronautical conference that Octave Chanute invited them to speak at. It seems no one actively attempting to build flying machines took advantage of their discoveries, because they did not realize what was at the heart of the problem (controls), which is just one of the reasons (but a big one) of why the Wright brothers succeeded first.

A lot of people do not realize that although their first flight was in 1903, most did not know flight had been achieved until several years later. Of course, the Wright brothers' claims and some pictures were made public, but people did not believe, and even accused them of being frauds. Especially in France, where nationalistic pride in being leaders in aeronautics was high. By 1908, some French aviators (e.g. Santos Dumont, Henry Farman) had achieved simple flights maybe similar or even slightly better than what the Wright brothers had achieved in 1903. But by then, the Wright brothers had far advanced from their 1903 machine. In 1908, in Le Mans, France, Wilbur Wright made the first public demonstration of their flying machine, staying in the air far longer than anyone else, and performing acrobatics never before seen. It was stunning and utterly sensational in global press, and all accusing the Wrights of being frauds (essentially all prominent French aviators) immediately retracted their accusations, and admitted that the Wrights were in fact the first to fly in 1903.

The point of the previous paragraph is to say that before the Wrights' public demonstrations, flying machines were not practical. After the Wrights' public demonstrations, although they made and continued to hold world records for some time, machines made by others improved rapidly. The Wrights were at the very least hugely influential to all aviators. I recommend the highly entertaining and informative biography on the Wright brothers written by David McCullough. I really think it could make for an excellent modern biopic!

Edit: more to the point, as rayiner points out in his comment, ailerons were actually covered in the Wrights' original patent.

A small point to your otherwise interesting post. Santos Dumont was, in fact, not French, but rather a Brazilian living in France.

I really enjoyed the McCullough biography. It seemed thorough and even handed. Any reason to think otherwise?

They invented, built and sold aircraft. They're not trolls. Perhaps they pursued patent enforcement to the point of abuse, but that's a different animal than sitting in a lawyer shop doing nothing but rent-seeking human progress.

> patent trolling: the controversial modern practice of suing competitors for infringements that fall beyond the scope of one’s patent

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