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Harry Aubrey Toulmin Sr.

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Harry Aubrey Toulmin, Sr. (Born in 1870? and died in 1942) was an American lawyer located in Springfield, Ohio, best known for writing the famous "flying machine" patent application the government granted to Dayton inventors Wilbur and Orville Wright on May 22, 1906. The resulting patent, U.S. Patent No. 821,393, was a document that withstood one of 20th century's the fiercest legal battles over intellectual property rights.

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post photo of Harry Aubrey Toulmin, Sr. here.

The Early Years

Not much is known about Toulmin's early years. In 1882, Toulmin graduated from The George Washington University School of Law, which has produced numerous patent attorneys that have written landmark patents. For the next four years after graduating from law school, Toulmin practiced patent law in Washington, D.C.

The Hiring

The Bushnell Building, Springfield, Ill., where Toulmin developed the patent application's for the airplane

Toulmin arrived in Springfield, Illinois 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 E Main St, Springfield, OH 45502-1358. When Harry Aubrey Toulmin, Jr. joined the law firm, Senior renamed the firm Toulmin & Toulmin.

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 Henry A. Toulmin.

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Partly Printed Check filled out to H.A. Toulmin and signed by "Wright Cycle Co./W.W." in Dayton, Ohio, 1907.

On January 14, 1904, Wilbur Wright wrote to Toulmin for an appointment for advice and assistance with filing a new application. Eight days later, on January 22, Wilbur traveled to Springfield, Illinois, to see Toulmin. Largely because Toulmin took Wilbur seriously when he came to announce he wanted to patent a flying machine, the Wright Brothers hired Toulmin that day and placed the Wright patent case in Toulmin's able 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. 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 airplane 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 warping itself.

Obtaining a very broad patent able to defeat all challenges in court would take time, and that, in the meantime, Toulmin advised them that they should not allow details of their invention to become public. 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.

According to Wilbur, Wilbur and Orville immediately liked Toulmin and his services.

Orville and/or Wilbur would travel to Springfield by the interurban streetcar from Dayton to Springfield to meet with Toulmin at the Patent Law Office of Toulmin & Toulmin, Dayton, Ohio. After their initial meeting, Wilbur saw Toulmin thirteen days later on February 4, 1904 to discuss foreign patent applications while Orville started constructing three new engines to replace a 1903 engine destroyed in a December 17, 1903 accident.

On June 21, 1907. Orville journeyed to Springfield, Ill., to consult Toulmin regarding new patent on device for maintaining automatic stability in an airplane. Orville made a second trip on June 26. On January 20, 1908 and June 15, 1908, Orville traveled to Springfield to consult Toulmin on Wright patents.

The Patent

Partly Illustration of patent no. 821,393, the Wright flying machine patent prepared by Toulmin.

The patent application Toulmin drew up gave the Wrights sole claim to the only system ever for the in-air control of a 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.” Dated May 22, 1906, parent U.S. patent No. 821,393 would later prove indestructible.

Claim 1 of the famous patent reads: In a flying-machine', a normally flat aeroplane having lateral marginal portions capable of movement to different positions above or blow 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.

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The circled airplane parts are what Toulmin's patent covered and the Wright Brothers are credited as inventing.

As you can see, the Write brothers did not patent the airplane. Rather, the Write brothers patented airplane (flying-machine) wing flaps (lateral marginal portions) that normally are flat but can move up and down in a direction that is different to the airplane's line of flight and can be moved to different angles. In other words, Toulmin helped the Wright Brothers patent slats, the spoiler, the aileron, the flaps, the elevator, and the rudder for an airplane (see picture at right). Without these, an airplane cannot be controlled. And without paying the Write brothers a royalty, you could not build or fly a controllable airplane in the early 20th century. As you would imagine, the verbal attacks by competitors on the Wright Brothers began almost immediately.

Trouble a Brewin'

In April 1910, Toulmin issued a page 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 J. Hammer, consulting engineer, and of James W. See, mechanical engineer, gave depositions that were taken at the office of H. A. Toulmin, Dayton, Ohio.

On January 9–10, 1912. Wilbur and Orville give depositions in Dayton in E. E. Winkley v. Orville & Wilbur Wright law suit. Testimony was given on the conception of their patent No. 415,105, 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 applications for the Wright Brothers over a period of 11 years, spurning more than 20 years of fierce legal battles over the intellectual property rights he helped to create. Toulmin channeled this notoriety into authoring more than thirty 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 1948.

History's View

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Betty Darst and her exhibit on Harry Toulmin -- the patent attorney for the Wright Brothers.

History sees Toulmin as a pioneer patent lawyer that, along with the Wright Brothers, ushered in the age of flight. In honor of the patent's centennial anniversary and the 101st anniversary of the last flight of the 1905 Wright Flyer, heritage groups in Dayton and Springfield, Ohio on October 5, 2006, unveiled the Harry A. Toulmin Sr. Memorial Sculpture on downtown Springfield's Fountain Square, across from the restored Bushnell Building where Toulmin had his office. The 8-foot sculpture is a bronze work by artist Michael Major. The Bushnell Building located at 14 E Main St, Springfield, OH 45502-1358 is part of Ohio's National Road Scenic Byway because that is where patent attorney Harry Toulmin helped the Wright Brothers acquire patents for their flying machine.

The register of Wilbur and Orville Wright's papers in the Library of Congress includes significant correspondence with the Wrights' lawyers concerning their business affairs, including Harry A. Toulmin (papers dated 1904 through 1948), who procured the basic patent for their invention of the airplane, as well as lawyers Frederick P. Fish, H. Springmann, and Pliny W. Williamson.

The demise of the Toulmin & Toulmin law firm

On September 26, 1947, Harry A. Toulmin Jr., machinery manufacturer, patent attorney, and part of the Toulmin & Toulmin law firm, resigned as chairman of the board from the Tucker Corp. In a letter to SEC, Toulmin indicated that he quit "because of the manner in which Preston Tucker is using the funds obtained from the public through sale of stock." He went on to say that President Tucker had ignored persistent requests that the $15 million "be spent and administered under . . . controls normal to legitimate business." Described as "a tall, dark, delightful, but inexperienced boy," by Toulmin to news personnel, Toulmin added that the Tucker 48 machine does not actually run, it just goes "chug-chug." Furthermore, "I don't know if it can back up." Tucker stated that he had asked Toulmin to resign "to make way for a prominent man now active in the automobile industry."

Family tree of Mr. Toulmin

Bruce Calvert-Toulmin has compiled genealogy history of the descendants of Harry Aubrey Toulmin, Sr. at link.

Books By Toulmin