Harry Aubrey Toulmin Sr. (1858 – May 17, 1942)The Ohio Death Index lists "Harry A Toulmin Sr.; died 25 Mar 1942; Montgomery County" was the American lawyer located in Springfield, Ohio, who wrote the "flying machine" patent application that resulted in the patent granted to Dayton inventors Wilbur and Orville Wright on May 22, 1906.
Early life Not much is known about Toulmin's early years. Born in 1858 to Joshua Morton S. Toulmin (1823–1896) and Frances Hellen (1828–1916), Toulmin had four brothers and three sisters. In 1882 at age 24, Toulmin graduated from The George Washington University Law School. For the next four years after graduating from law school, Toulmin practiced patent law in Washington, D.C.
Before the hiring
Toulmin arrived in Springfield, Ohio from Washington D.C. in 1886 because it was a center of innovation and invention that required legal representation for patent proceedings. He set up his law firm in the Bushnell Building located at 14 East Main Street in Springfield. In 1888, Toulmin married Rosamond Evans (d. 1947); they had two children who lived past infancy: Morton Warwick Evans and Harry Aubrey Toulmin Jr. (1890–1965). When Harry Aubrey Toulmin Jr. joined the law firm, his father renamed the firm Toulmin & Toulmin.
The hiring Applying for a U.S. Patent on their flying machine was never far from the Wrights' minds. Their first attempt to get a patent on their invention failed, largely because they wrote the patent application themselves. Also contributing to its demise was their inability to demonstrate a "practical flying machine." At that time, the U.S. Patent Office had begun to receive a flood of patent applications for aerial craft of all descriptions, real and imagined, and had adopted a policy of only approving applications for inventions involving flying machines if the benchmark of "practicality" could be met and demonstrated. The practicality benchmark has long since been discarded by the U.S. Patent Office as being unworkable.
Following the U.S. Patent Office examiner's advice for the brothers to work with a patent attorney, Wilbur began searching for a qualified lawyer. Two friends, John Kirby and Will Ohmer, recommended that Wilbur contact Toulmin.
On January 14, 1904, Wilbur Wright wrote to Toulmin for an appointment for advice and assistance with filing a new application.Renstrom, Arthur George, (Sept. 2003). Joint Publication of the U.S. Centennial of Flight Commission and the National Aeronautics and Space Administration. A Reissue of a Chronology Commemorating the Hundredth Anniversary of the Birth of Orville Wright – August 19, 1871. Page 7. (The chronology incorrectly list Springfield, Ill. as the meeting location: "JANUARY 14. Wrights write to Harry A. Toulmin, patent attorney in Springfield, Ill., for appointment to discuss pending patent application.") Eight days later, on January 22, Wilbur traveled to Springfield, Ohio, to see Toulmin. Toulmin took Wilbur and Orville seriously when they came to announce that they wanted to patent a flying machine. The Wright brothers hired Toulmin that day and placed the Wright patent case in his hands.
Toulmin was confident that he could use the original application as a starting point for a broad, airtight patent that would protect the brothers' invention. But he warned Wilbur and Orville that the process would be lengthy, and he recommended that they keep quiet about the details of their aircraft. Based on Toulmin's direction, the Wrights decided on secrecy until their patent was secured, during which time they continued to work at building a real, practical machine.
Toulmin urged that the Wrights not seek a patent on their aircraft but only on its system for in-air control. They followed his recommendation that they apply for a patent based on the three-axis control system of their 1902 Glider instead of their powered 1903 or 1904 Flyers in order to avoid having to present a working model to a highly doubting Patent Office. In addition, Toulmin advised the Wrights to patent not just the mechanisms that allowed them to warp or flex a wing but, more importantly, to patent the idea of roll control itself.
Toulmin was able to interpret the Wrights' complex laboratory and field work down to their essential breakthrough. Wilbur walked into Toulmin's office wanting to patent an airplane and walked out wanting to patent only the control system. According to Wilbur, he and Orville immediately liked Toulmin and his services.
Orville and/or Wilbur would travel to Springfield by the interurban streetcar from Dayton to meet with Toulmin at the Patent Law Office of Toulmin & Toulmin. After their initial meeting, Wilbur met Toulmin thirteen days later on February 4, 1904 to discuss foreign patent applications, while Orville and Charlie Taylor started constructing three new engines to replace the 1903 engine wrecked beyond repair after the end of the fourth flight of December 17, 1903 at Kitty Hawk.
On June 21, 1907, Orville journeyed to Springfield, Ohio, to consult Toulmin regarding a new patent on a device for maintaining automatic stability in an airplane. Orville made a second trip on June 26. It is also known that on January 20, 1908 and June 15, 1908 Orville traveled to Springfield to consult Toulmin on Wright patents.
The patent
The patent application Toulmin drew up gave the Wrights sole claim to the only system ever devised for the in-air control of a fixed-wing flying machine. By April 1904, the Wrights' patent had been filed not only in the United States but in Britain, France, Belgium, Germany, Austria, Italy, and, Wilbur wrote, "probably Russia." The U.S. patent issued in 1906., Orville Wright and Wilbur Wright, Flying-Machine, May 22, 1906
Claim 1 of the patent reads: In a flying-machine, a normally flat aeroplane having lateral marginal portions capable of movement to different positions above or below [sic] the normal plane of the body of the aeroplane, such movement being about an axis traverse to the line of flight, whereby said lateral marginal portions may be moved to different angles relative to the normal plane of the body of the aeroplane so as to present to the atmosphere different angles of incidence, and means for so moving said lateral marginal portions, substantially described.
On deciphering the patent legalese, it becomes apparent that Toulmin did not patent the airplane. Rather, Toulmin patented airplane (flying-machine) wing edges (lateral marginal portions) that normally are flat but may move up and down in a direction that is different from the airplane's line of flight and may be moved to different angles. Although the patent particularly addressed a solid wing with a portion of the wing (the marginal portions) being flexed (warped) to provide lift, the patent claim was not so limiting. In particular, Toulmin's genius as a patent attorney predicated and helped the Wright Brothers patent slats, the spoiler, the aileron, the flaps, the elevator, and the Rudder for an airplane (see picture above). Without these, an airplane cannot be controlled any more than a car can be controlled without movable wheels. Without a license to the Wright brothers' patent, it was not legally possible to build or fly a controllable airplane in the early 20th century. Unsurprisingly, the verbal and legal attacks by competitors on the Wright Brothers began almost immediately.
After the patent Patent litigation was a costly endeavor. In a January 22, 1910 letter to Wilbur, Toulmin suggested that the most economical way for the Wright brothers to proceed would be to enter into a retainer agreement with Toulmin & Toulmin, paying US$12,000 (about US$132,000 in 2006 inflation-adjusted dollars) for the first two years and US$10,000 per year (US$110,000 inflation adjusted to 2006) for the subsequent five. This would permit Toulmin to devote his full attention to the Wright brothers litigation, he suggested. Even though the amounts requested were reasonable, it took the Wright brothers only two days to reject that proposal. It may have been money that ended the relationship between Toulmin and the Wright brothers.
In April 1910, Toulmin issued a statement saying that attacks on the Wright brothers was wholly unjustified.
By 1911 Toulmin's prized clients were operating the world's first aircraft factory and the world's first flight-training school while fighting an armful of patent-infringement suits.
On February 13 and 15, 1911, William Joseph Hammer, consulting engineer, and James W. See, mechanical engineer, gave depositions that were taken at the office of H. A. Toulmin, Dayton, Ohio.Renstrom, Arthur George, (Sept. 2002). Joint Publication of the U.S. Centennial of Flight Commission and the National Aeronautics and Space Administration. A Bibliography Commemorating the One-Hundredth Anniversary of the First Powered Flight • December 17, 1903. Page 89. ("Testimony on Behalf of Complainant. In Equity on Letters Patent no. 821,393. In the United States Circuit Court, Southern District of New York. [New York: 1911], 69 pp. [typescript] Includes testimony of William J. Hammer, consulting engineer, and of James W. See, mechanical engineer, taken February 13 and 15 at the office of H. A. Toulmin, Dayton, Ohio.")
On January 9–10, 1912. Wilbur and Orville give depositions in Dayton in Erastus E. Winkley v. Orville & Wilbur Wright lawsuit. Testimony was given on the conception of their patent no. 1,075,533,, Orville Wright and Wilbur Wright, Flying-Machine, October 14, 1913 filed by Toulmin on February 10, 1908. Several drawings used for their patent application and correspondence with Katharine Wright and Harry A. Toulmin regarding it are introduced into the record.
Later in life Toulmin handled five patent applicationsWright Brothers' Patents , Wright State University Libraries, Special Collections and Archives. In addition to the 821,393 and 1,075,533 patents previously mentioned, Toulmin obtained the following three additional patents: , Orville Wright and Wilbur Wright, Mechanism for Flexing the Rudder of a Flying-Machine or the Like, January 5, 1905; , Orville Wright and Wilbur Wright, Flying-Machine, March 21, 1911; and , Orville Wright and Wilbur Wright, Flying-Machine, December 29, 1914. for the Wright brothers over a period of 17 years, spurring more than 13 years of fierce legal battles over the intellectual property rights he helped to create. As a result of Toulmin's success in keeping others from using the Wright brothers' ideas, aircraft manufacturers established the Manufacturers Aircraft Association to coordinate the World War I wartime aircraft manufacturing in the United States and formed a patent pool four months after the United States joined the war, in July, 1917, with the approval of the U.S. government. All patent litigation ceased automatically and royalties were reduced to one percent and free exchange of inventions and ideas took place among all the airframe builders.Note, Compulsory Licensing and the Patent Pool Problem, The Yale Law Journal, Vol. 46, No. 8, June, 1937, pp. 1402–1406 Toulmin channeled his success and notoriety into authoring more than 30 books on a wide variety of topics, including the Truman Committee of President Harry S. Truman. Several of Toulmin's books were published well after his death in 1942.
History's view