What did it mean to design an aeroplane? Disputed claims to the Royal Commission on

Awards to Inventors, 1919-1937

Christine MacLeodSchool of Humanities, University of Bristol

ESSHC conference, Ghent14 April 2010

How to specify the intellectual property in a complex (‘general’) design?

• What did it mean to design an aeroplane?• ‘Design’ remains an ill-defined concept

– Design Registration for ‘decorative arts’ (1839)– ‘modern’ patent (1852, 1883) and copyright (1862, 1911)

legislation sidelines design (‘lesser arts’ and minor inventions)

• Wartime production of aeroplanes (1916-18) raises the issue in acute form:– aircraft manufacturers demand compensation for the use

of their designs by other government contractors.

What did it mean to design an aeroplane?Historiography

E. W. Constant, The turbo-jet revolution (1980)W. G. Vincenti, What engineers know and how they know it (1990)

– investigates ‘the cognitive dimension of engineering’ – ‘normal’ design (established technology)– 5-stage hierarchy (mid-20C US aircraft manufacturers)– focus on lower levels ‘where the majority of effort takes place, problems are

usually well defined, and activity tends to be highly structured’

M. J. Pryce ‘Descartes and Locke at the drawing board’ (DPhil, 2008)– ‘normal and routine’ project design at upper levels, late-20C UK– persistence of different styles of working in two, rival teams

David Edgerton, England and the aeroplane (1991)– ‘question of design’ crucial in procurement policy, mid-20C UK– but no scrutiny of what aircraft designers were doing

Officialdom’s twin concerns with military patents: secrecy and royalties

1859 Patents for Invention (Munitions of War) Act

-- vested power in Crown to keep inventions secret

-- but left Crown at mercy of patentee re: royalties 1883 Patents, Designs and Trade Marks Act (1907 Act, sect. 29)

-- procedure introduced for keeping specifications secret, but Crown may not inspect specifications prior to publication

-- Treasury authorised to adjudicate royalty claims against Crown 1914 Orders in Council (14 Aug), regulation 18b

-- Ministry of Munitions officials may check patent applications ; may request copy from inventor, with view to secret

implementation

1919 Royal Commission on Awards to Inventors

Royal Commission on Awards to Inventors• 1919-1937 RC processed 1834 claims:

– 97 patented, 1737 unpatented inventions (including designs)

• Investigating Committee (chairman + secretary) sifted 1465 ‘weaker’ unpatented inventions

• 75 referred to Commission for decision• 544 rejected (in 200+ cases, after hearing inventor in person)• 846 withdrawn by claimant

• Commission heard 444 claims:• 64 (Head I) patented• 33 (Head II) patented but ‘secret’ under 1907 Act, sect. 29• 347 (Head III) unpatented.

Royal Commission on Awards to Inventors, 1919-1937

• Patented inventions (legally entitled to award)• RC takes over Treasury’s role to adjudicate amount

of compensation due for Crown’s use during WWI• problematic cases

• validity or use is disputed by Crown• patentee is in military service or Govt employment• inventor refrained from patenting at Govt request• patentee received special facilities or assistance

• Unpatented inventions (ex gratia payment)

Unpatented inventions, designs, drawings, etc.1) must demonstrate a degree of novelty, ‘though not

necessarily . . . such as would sustain the grant of letters patent’;

2) must be of ‘exceptional utility’ (probably demonstrated by extensive use in Govt’s service);

3) must be embodied in ‘a definite form’, or reduced to ‘a practical working shape’, i.e. no merely paper schemes or suggestions.

No claim recognized where an invention ‘is publicly announced and thrown open to all the world and is not the subject of any exclusive or special communication to the Crown’e.g. medical or surgical procedures, in which professional practice is to disclose them ‘for the common benefit of mankind’

Unpatented inventions, designs, drawings, etc.

1) amount of award (£) influenced by, e.g. ‘the importance and difficulty of the problem to be solved, the time and effort expended in the solution, the inventive merit displayed and the reward (if any) obtained . . . from other sources.’

2) ‘outside’ inventors more favourably treated than officers on temporary commissions, still more than officers on permanent commissions (must be outside scope of normal duties) ; someone employed for ‘the very purpose of research & discovery’ has no valid claim.

3) a contractor for a Govt Department ‘cannot ordinarily claim anything beyond the price of that which he supplies’.

Awards to patented & unpatented innovations

• RC dispersed £1,500,000 in 282 awards• Royalty awards (i.e. % of sale price) defy calculation

• minimum award £100; maximum £125,000– 45.3% received £100--£5,000– 4.5% received £5,500--£10,000– 5.9% received > £10,000

• 162/444 (36.5%) claimants received no award– 150 ‘nil’ award; 12 withdrew claim

Awards for Aviation£522,375 (1/3 total dispersed) in 10 large awards to

British aircraft and aero-engine manufacturersawards range from £20,000 to £110,375 9/10 = unpatented inventions; 1/10 = (not secret) patent awards for particular aero-engines (6) or aeroplanes (4) awards for engine designs average £54,562; aeroplane designs

average £41,250 (a fraction of amounts claimed).

£67,100 in 36 small awards + 4 awards of royalties 8 awards (£2,231 ave) to ‘service inventors’; 7 failed claims 12 awards (£1,367 ave) to private individuals; 3 failed claims 20 awards (£2053 ave + 4 royalties) to companies; 3 failed claims

Handley Page Ltd’s claim, May 1922 • Compensation for IP in aircraft of their design built

for British Government by other manufacturers– 273 “O” type (£1.7m) by others; 275 (£1.5m) by HP Ltd– Govt fiercely contested claim – 2 years’ preparation

• A question of fact– who was responsible for design of O/100?– i.e. how much help from government bodies?

• A question of interpretation– What did it mean to design an aeroplane?– i.e. who was responsible at the most crucial point?

‘One of those difficult cases that deal with a general design’

Frederick Handley Page(1885-1962)

What did it mean to design an aeroplane?

• Frederick Handley Page– A problem-solving exercise

• requires good understanding of aerodynamic theory and necessary calculations

• requires application of ‘existing engineering knowledge’• but aerodynamic theory and engineering knowledge are

insufficient• also requires experiment, testing and ingenuity to ‘evolve

something new’• ‘the patented features were of comparatively little importance’

– ‘it is “design” which determines the difference between a good machine and a bad one.’

Leonard Bairstow, CBE, FRS (1880-1963)Government expert witness in aeroplane cases

heard by the Royal Commission

• Professor of Aerodynamics at Imperial College, London (1920-45)

• had been technical adviser to the Air Board/Ministry (1917-20) and a researcher at the National Physical Laboratory (1904-17)

• published textbook, Applied Aerodynamics (1920)

What did it mean to design an aeroplane?• Leonard Bairstow• the application of aerodynamic science

• ‘applied science, not what you would call theoretical science. My book is headed not “aero-dynamics” but “applied aero-dynamics”’

• Q. had he ever designed an aeroplane?A.‘No, but I could do so.’

• implies that once ‘aero-dynamic details’ have been determined by calculations and tests, everything else (‘the detailed internal structure’) is ‘ordinary engineering’

• ‘I do not know of any real difference between Handley Page and any other machine’; ‘no originality’

What did it mean to design an aeroplane?

• Admiralty Air Dept designers & technical officers– Design is a creative, problem-solving exercise, that takes a

given aerodynamic specification as its springboard• ‘When the arrangement has been approved . . . then the real

designing work starts. The real designing work is the stressing, the actual detailing of the parts, the arranging of everything so that it comes into the machine properly’ (Harold Bolas)

• ‘you can get a dozen designs to the same specification and probably only one would be successful’ (Col. E. W. Stedman)

• ‘there was nothing of creation given to Mr Handley Page’ [by the Admiralty’s technical officers or the NPL] (Col. A. Ogilvie)

• ‘there are a few classic designs of machine’ (Harris Booth)– ‘there was nothing to touch the O.400 . . . It had no competitor’

Three subsequent claims to the RCAI for aeroplane designs, 1922-4

• Bristol Aeroplane Company– ‘Bristol Fighter’, awarded £50,000

• Sopwith Aviation & Engineering Company– 4 designs of aeroplane, awarded £40,000– (already £70,000 direct from Govt, for 5 other types)

• The Aircraft Manufacturing Company + Captain Geoffrey De Havilland (chief designer)– 5 designs of ‘DH’ bombers, awarded £35,000

What did it mean to design an aeroplane?Developments in the debate, 1922-24

• Case for Claimants– ‘a successful compromise and balance . . . the just

balance of the different parts and different features of the machine, so you get what is desired.’

– a single specification prompts many different designs, of which only one or two are successful.

• Case against Claimants– the credit for improved performances lay with

increasingly powerful engines, not airframe designs– Bairstow (a minor point in Handley Page case, his major argument in

subsequent cases).

Conclusions• What did it mean to design an aeroplane?

– a problem-solving exercise– the application of aero-dynamic science– creative engineering – ‘the arranging of everything so that it

comes into the machine properly’ (Bolas)

• Hard to define but good designs stand out:– a ‘classic’, ‘it showed the firm [HP Ltd] were ahead of the

average of their time’ (Booth)– ‘I realized that one design was a long way ahead of the

others’ (De Havilland, Sky Fever)

• Problem: how to specify the IP in a design?

Two years and three cases later . . .

‘We talk about these things, Mr Whitehead, but I do not know what new design is: nobody has ever succeeded in defining it here.’

-RCAI chairman to Government’s Barrister in AMC + De Havilland case, 5 May 1924