How did the United States, which invented the first fixed wing powered aircraft, fall so distantly behind the Europeans in military aviation by the end of World War I? The US got a slow start for several reasons, including a general apathy for the war and a lack of institutional will. An underrated villain, though, was the problematic application of intellectual property protection, a problem that the United States defence establishment continues to struggle with.

Intellectual property protection and national security have long been intertwined. For as long as espionage has existed, spies and agents have tried to steal and copy foreign technology.  Early modern kings used patent protection to provide monopolies for important supporters, as well as to reward efforts at innovation in military technology.

 

When the development of military equipment (and especially naval equipment) became cost-prohibitive for private companies at the beginning of the 20^th century, the government stepped in to support research and production.  This came with a price (detailed in Katherine Epstein’s wonderful book Torpedo), which usually included ownership of the patents and trade secrets associated with the resulting technologies.

Modern military aviation began just as industrialisation began to overtake war. The successful first flight of the Wright Flyer in December 1903 was a magnificent engineering achievement, especially given the limited resources available to the Wrights. The brothers moved aggressively to counter anyone who used anything approaching their system of guidance, which they interpreted broadly to mean anything that changed wing surface in order to affect manoeuvrability (for more, see Lawrence Goldstone’s Birdmen). The Wrights hoped that the United States government would come through with a big cash payment for rights to the machine, and in fact refused to even demonstrate the flight in front of large audiences out of fear of theft.

Unsurprisingly, this made it difficult for other inventors to build upon their achievements. Almost any aircraft could run afoul of the “wing change” claim, even though the particular ‘wing warping’ technique used by the Wrights was not replicated in many other aircraft of the era. In 1909, the Wrights sued Glenn Curtiss for patent infringement following the developing of his own aircraft, which used lever-controlled aileron to manage manoeuvrability.  The legitimacy of the Wright’s claim remains in some dispute, and the suit played out across a host of legal venues in several different countries, but never resulted in a significant finding for the Wrights.

The Wright’s obsession with litigation, combined with the unfortunate death of Wilbur, slowed innovation within the firm and made it ever more important to profit from already existing intellectual property.  At least one history describes them as “patent trolls,” but this term usually connotes a genuine grifter, not an over-zealous inventor. Wright Co. suffered, but so did the rest of American aviation as inventors hesitated to develop new technologies out of fear of debilitating lawsuits from the Wrights.  Some pre-emptively avoided the problem by paying off Wright Co. ahead of time, but the threat of lawsuits generated bad blood and deterred sharing.

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As a result, despite having a huge economy and a vast industrial base, the United States found itself breathtakingly behind European standards as the war began.  Rather than build its own aircraft, it relied on European producers, straining industries already working at near maximum capacity.  US pilots would enter the war flying foreign aircraft, with the US aviation industry far behind its competitors.

The patent fight wasn’t the only reason for US unpreparedness for World War I.  The Army had not devoted sufficient attention to aviation in the years before the war, leaving responsibility with the Signal Corps, which was under-resourced and struggled to develop a strong procurement plan or any theories of offensive and defensive warfare.  Unlike in Europe, the executive did little to push the Army into developing a more aggressive aviation strategy. Moreover, the US aviation industry struggled even to produce European models under license, as US production methods were not well-suited to the craftsmanlike approach of the early aircraft production.

Eventually, the prospect of war in Europe drew the conflict into clearer focus.  The United States government pressed the major aircraft manufacturers (including Wright and Curtiss) to enter a ‘patent pool’ which would ensure access to critical inventions but ensure the payment of a reasonable fee. Not coincidentally, this gave the government a stronger hand in negotiations with manufacturers, driving down overall prices.  Most historians (but not all) concur that the dispute dramatically slowed the development of US aviation, both in

the military and civilian sectors. Eventually, clearing the tangles enabled the United States to develop a thriving, multifaceted aviation industry that would serve the country well in the Second World War.

Theoretically, strong patent and trade secret protection encourages innovation by giving inventors incentive, as well as a mechanism to protect any information that they share with other inventors.  But the system sometimes breaks down. Inventors, reluctant to give up exclusive rights in the civilian market, balk at selling out to the government.  Department of Defense officials can be overzealous in their pursuit of the data, trade secrets, and patents necessary to maintain the production of military equipment after the original producer has lost interest.  And governments sometimes use intellectual property law as a cudgel to hammer small businesses, or to undercut unwanted competition. The turn of the 19^th century saw tremendous changes in the legal context of the production of military technology, and the turn of the 20^th century seems to have seen something very similar.

Dr. Robert Farley teaches at the Patterson School of Diplomacy and International Commerce at the University of Kentucky.  He is the author of Grounded: The Case for Abolishing the United States Air Force and Patents for Power: Intellectual Property Law and the Diffusion of Military Technology.

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