equal and uniform angles of incidence are presented
as distinguished from fluctuating angles of incidence. Such claimed
functional effects, however, are strongly contradicted by the expert
witness for complainant.

Similar to Plan of Wrights.

"Upon this contention it is sufficient to say that the affidavits for
the complainant so clearly define the principle of operation of the
flying machines in question that I am reasonably satisfied that there
is a variableness of the angle of incidence in the machine of defendants
which is produced when a supplementary plane on one side is tilted
or raised and the other stimultaneously tilted or lowered. I am also
satisfied that the rear rudder is turned by the operator to the side
having the least angle of incidence and that such turning is done at the
time the supplementary planes are raised or depressed to prevent tilting
or upsetting the machine. On the papers presented I incline to the view,
as already indicated, that the claims of the patent in suit should be
broadly construed; and when given such construction, the elements of
the Wright machine are found in defendants' machine performing the
same functional result. There are dissimilarities in the defendants'
structure--changes of form and strengthening of parts--which may be
improvements, but such dissimilarities seem to me to have no bearing
upon the means adopted to preserve the equilibrium, which means are the
equivalent of the claims in suit and attain an identical result.

Variance From Patent Immaterial.

"Defendants further contend that the curved or arched surfaces of the
Wright aeroplanes in commercial use are departures from the patent,
which describes 'substantially flat surfaces,' and that such a
construction would be wholly impracticable. The drawing, Fig. 3,
however, attached to the specification, shows a curved line inward of
the aeroplane with straight lateral edges, and considering such drawing
with the terminology of the specification, the slight arching of the
surface is not thought a material departure; at any rate, the patent in
issue does not belong to the class of patents which requires narrowing
to the details of construction."

"June Bug" First Infringement.

Referring to the matter of priority, the judge said:

"Indeed, no one interfered with the rights of the patentees by
constructing machines similar to theirs until in July, 1908, when
Curtiss exhibited a flying machine which he called t