When one spends any time criticizing the U.S. patent system or those who profit from it while offering dubious benefits to the consumer, one inevitably runs up against a particularly annoying rhetorical tactic employed by those same profiteers.
“How can you complain about patents, or about our use of them?,” they shriek. “Why, do you think [insert famous inventor here] was a patent troll?!”
A fine specimen of this thoroughly ridiculous trope was published recently at the diehard patent troll apologist website IP Watchdog, accusing the R Street Institute (full disclosure: a former employer of mine) of being anti-free market because they had the temerity to host a panel where one of the panelists criticized the Wright brothers.
Now, R Street most emphatically does not need my help defending themselves. The IP Watchdog article already bears a stern editorial note at the bottom indicating that they have pointed out the most glaring flaws with the piece: namely, that it attributes a false position to R Street (wanting to abolish patents, which they do not support) and that it attributes the views of panelists to R Street itself, even though they only hosted the event, and think tanks often invite panelists with provocative points of view to speak without necessarily agreeing with those points of view. That being said, the main thrust of the article, which can be uncharitably but accurately described as “Wright brothers build airplane and Wright brothers have patent for airplane therefore Wright brothers good and patents good,” is emblematic of the complete inability of some patent defenders to hold more than one idea in their heads.
The two ideas in question are firstly, that yes, the Wright brothers were iconic American inventors and were owed recognition and compensation for their breakthrough; and secondly, that the Wright brothers very nearly killed the American airplane industry in its crib with their desire to squeeze every dollar — and competitor — out of it using patent litigation; and thirdly, that whatever their merits as businesspeople, the Wright brothers might never have been able to get their airplanes off the ground if the policy preferences of patent trolls had been obeyed at the time.
So, yes, the Wright brothers were iconic, to the point that “any fifth-grader can tell you that the Wright brothers invented the airplane,” as the IP Watchdog article puts it. But policymakers and historians are supposed to operate at a higher level than “Are you smarter than a fifth grader?” So let’s be more specific: the Wright brothers invented the first airplane that could be steered. Inventors had been attempting to build flying machines for quite some time before the Wrights. Some of them could take off but only fly short distances, while others — like Clement Ader’s “Avion III” — were able to remain in the air but had primitive methods of directional control. It is worth noting, by the way, that at least some sources — such as the journal Science — refer to Ader himself as the “father of aviation,” a point which we’ll come back to later, seeing as Ader’s efforts predated the Wrights’.
That being said, the Wrights did develop something genuinely new — namely, the concept of “wing-warping,” shaping the wings of the plane themselves to stabilize it in the air. This permitted pilots to maintain balance in the air and also to turn the plane if necessary. This was a legitimate breakthrough, and the Wrights deserve a great deal of historical credit for it as engineers.
Had the brothers bent the resources of their justifiably well-capitalized Wright Company to actually building airplanes and satisfying the market they had just created out of thin air, there is little doubt that their name would have given them a leg up on the competition and permitted them to dominate the new airplane industry for at least a time.
But that is not what the Wright Company did. In fact, it built very few actual airplanes. Rather, it spent all its resources on legal enforcement of its patents: patents that did not just cover the genuine innovation that was wing-warping but also covered any and all methods that might permit an airplane to be stabilized. In other words, the Wrights believed that literally anyone and everyone who wanted to build an airplane owed them royalties. Wilbur Wright himself said so in a letter: “It is our view that morally the world owes its almost universal system of lateral control entirely to us. It is also our opinion that legally it owes it to us.”
As arguments go, this is rather like Louis’ Lunch in New Haven, Connecticut — the first restaurant to serve a hamburger — trying to collect royalties from McDonald’s, Burger King, Five Guys, and every other burger chain on Earth in perpetuity. Except that claim would actually be more justifiable, because Louis’ Lunch is at least in the business of making hamburgers, while the Wright Brothers mostly avoided making airplanes and stopped innovating after their wing-warping technology was developed out of fear that further innovations would weaken their already existing patent rights.
In other words, they built something truly extraordinary and then sat on it and expected the rest of the world to pay them tribute for having done so, even if the rest of the world came up with superior designs in the meantime. In fact, Glenn Curtiss, an entrepreneur whose name is less well known than that of the Wrights but who arguably built the actual American airplane industry, got so fed up with the Wrights acting entitled to money from anyone and everyone who built an airplane that he simply went right on innovating and building better airplanes and regarded the court costs of dealing with the brothers as a cost of doing business. In fact, Curtiss was better at the Wrights’ game than they were: while the Wright Brothers invented wing warping, it is Curtiss’ design for lateral stability that is still used by airplane manufacturers today.
The Wright brothers responded to Curtiss’ dismissive attitude by getting embroiled with him in a Jarndyce-and-Jarndyce-level legal drama, which continued until the death of Wilbur Wright himself. The costs of this legal war with Curtiss so depleted the coffers of the Wright Company that they ended up underpaying employees and becoming unable to build airplanes even had they wanted to. In short, they killed their own company rather than accept that other people could build a better product.
And it wasn’t just their own company that suffered: even after the U.S. government forced the Wrights and Curtiss to cross-license their patents in World War I, the legal battle had so hampered the development of the American airplane industry that American airplanes were seen as unfit for combat, period. The Wright brothers invented the airplane, yes, but they also nearly prevented the production of airplanes altogether. In other words, it’s a stupid question whether the Wright brothers were inventors or patent trolls. Quite clearly, they started as inventors and became patent trolls, and neither fact obscures the other.
Had the arguments of today’s patent trolls held sway then, though, they probably would not have had the chance to be either of these things. Why? Well, remember how Clement Ader in France is seen by some as the “father of aviation” even though he built much more primitive airplanes than the Wright brothers? Well, imagine Ader had patented his invention in the United States and sued the Wright brothers for even trying to build a better model. Hell, imagine he’d dragged them into French court for infringing on his French patents, the way some trolls do with U.S. inventors in China? The French went out of their way to try to discredit the Wright brothers as it was, but if actual money had been involved, would the Wright brothers have stuck with it, like Glenn Curtiss did? Or would a French citizen have effectively shut out a competitor, and today every fifth grader would be talking about Clement Ader, rather than the Wrights? And what if Ader had never actually built pilotable airplanes but had only patented them after building rudimentary unpiloted aircraft? Would he have been able to litigate competitors out of business long enough that today, passenger aircraft might not even exist?
Make no mistake: trolls today want a world where all these things are possible simply so they can sit on their posteriors and collect licensing rights, while their lawyers collect legal fees. This might technically have been the approach favored by the Wright brothers later in life, but perhaps it’s a mercy that people remember the Wrights for their abilities as engineers and inventors rather than as persnickety litigants trying to rest on their laurels and pull the ladder up from others. The trolls have no right to use the Wright brothers’ early triumphs as shields for indulging in their later vices. That would be the most ignoble version of patent rights — and of the Wrights — to follow, and for that reason, it is a wrong that our system must avoid at all costs.