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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.

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