The Aviation Partners have sued Airbus over the French aircraft manufacturer’s utilization of the Seattle company’s patent protected winglet. The article delves into the details of the claims and the litigation process. While this is news, the debate over who owns the intellectual property rights is not new. [This post takes no position on the law suit]
Intellectual property issues have been a part of aviation developments since First Flight. The Wright Brothers submitted a patent application soon after their Kitty Hawk proving runs in 1903 and their rights were recognized by the Patent Office in 1906. Thereafter, they were engaged in a constant legal battle. The first organization that they sued was Glen Curtiss’ company (by an odd quirk of fate, one of Curtiss’ partners was Lt. Thomas Selfridge, who later was a US representative of the 1908 US Amy Signal Corps evaluation team at Ft. Myer, was the first person killed in aviation when the plane piloted by Orville crashed with Selfridge aboard).
The FAA has no legal authority, and thus no technical capacity, to determine the ownership of intellectual property. The frequent cry in the Parts Manufacturing Approval (PMA) and Supplemental Type Certificate (STC) application processes is that someone other than the person seeking that authority owns the idea. The response from the FAA is that we are not able to decide that issue.
PMAs and STCs are vital to the aircraft development and aviation safety. In fact, Aviation Partners contributed significantly to airplane efficiency with its winglet. There are many PMAs that have reduced the cost of replacement parts. The data needed to obtain STC and PMA approvals frequently reside in the Type Certificate data. Equally, in order to obtain the FAA authority, sometimes the information supporting the request for the supplemental or parts manufacturing approval must be revealed to the OEM.
It is extraordinarily difficult to sift through the records that are the focus of intellectual property litigation. The issues are rife with engineering and regulatory complications that are difficult for a judge to discern. For example, the Wright Patent litigation, involving far less complex engineering and no regulatory determinations, consumed four years and the stress involved, the Wright Family claimed, contributed to Wilbur’s death.
This history suggests that it might be well worthwhile to consider a global legal solution. Airplanes, technological innovations, maintenance procedures and related information need to flow freely around the world. This movement of the data, drawings and design are critical to safety and aircraft development.
Litigation, like the battle between Aviation Partners and Airbus as well as the numerous court cases over PMAs, will retard that free flow. The dollars and hours consumed by such legal conflicts are substantial. It is quite probable to forecast that Aviation Partners or similar innovators will no longer share their data with large OEMs just based on the efforts which the Seattle group will expend to defend its rights.
The Chicago Convention was called in 1938 because world leaders then saw the potential for local laws to restrict the flow of air commerce. Maybe it would be timely for the International Civil Aviation Organization to invite all nations to come to discuss policies, protections and processes to insure that aviation data can be shared without fear of “stealing.” An ICAO meeting will have international safety as one of its guiding principles, but must also consider improvements over the current patchwork systems in which some countries have little or no IP protections, others where the local courts are not known for being impartial and other venues where the “sharks” are looking for ways to profit over innovations.
The countries which are home to major aircraft and engine manufacturers have expanded from a small number now to include the USA, UK, France, Germany, Canada, Italy, Spain, Israel, Brazil and now China to name a few. More countries have or are adding repair stations, which need the date to perform their work and are sources for STCs.
The problems are bad now and the potential for stagnation increases exponentially as new countries join the fraternity of aerospace countries. ICAO, which is an organization with the international competence for aerospace issues, and which is well known for the slowness of its processes, would be well advised to start to address this expanding problem.Share this article: