Bridge patent trolls found match in McCullough

By Finn J.D. John
July 7, 2024

EDITOR’S NOTE: This article is Part One of a two-part series on Conde McCullough and his Oregon bridges. Part Two is here. The series comprises a rewritten and re-researched version of a much shorter article published Nov. 13, 2011, which you can find here.

CONDE MCCULLOUGH had a problem.

Actually, let’s restate that. The Iowa highway department, which McCullough worked for at the time (in 1914), had a problem; what McCullough had was an opportunity.

His solution to Iowa’s problem would, several years later, enable him to basically write his own ticket, and the name he would write on that ticket in the “destination” category would be “Oregon.”

But at the time, that happy day was several years in the future and was far from certain. The problem the highway department was depending on McCullough to solve for them was a big one, and success was far from assured.

The problem’s name was Daniel Luten, and he was the founder and president of the National Bridge Company. And he was a patent troll — possibly America’s first.

The National Bridge Company was one of a handful of startup construction outfits that had sprung into being after about 1890, when people started regularly traveling on driven wheels for the first time. (Wheels, at the time, meant bicycles. Automobiles wouldn’t be a factor until 15 to 20 years later.)

Obviously, a horse can cope with much worse road conditions than a bicycle can. So as Oregonians and other Americans started using bicycles, they quickly found that roads that worked OK for Old Bessie were not great for bikes. In fact, for the early “wheelmen,” riding the old big-wheel “penny-farthing” models, it was a matter of life and death — a bad road surface could lead to a “header” crash over the handlebars, with a strong possibility of a broken neck.

As counties and states started spending public money on fixing their old mud-bog wagon roads, they naturally wanted to replace fords and ferries with bridges. But most 1890s counties didn’t have much engineering expertise in-house, so they would entertain bids from contractors — including nationally-active bridge companies like Luten’s, which sold their services and designs like life insurance policies, courthouse-door to courthouse door, promising whatever it took to make a sale.

These companies typically just installed whatever bridge they had patent rights on or expertise in, whether it fit the spot or not. Many of the bridges they built lasted only a year or two before footings washed out or surfaces failed because of a design that didn’t work with the local geography. Others required so much additional bracing and reinforcing to make them work, that the adaptations — huge wing walls to prevent flood washouts, massive slugs of concrete to anchor thrust arches in sandy soil, that kind of thing — cost more than the bridge. At least one bridge company successfully sold the same bridge to two adjacent counties — the bridge crossed the county line, so the company billed each county the full price of the bridge. They also typically overcharged, because county leaders didn’t really know what a bridge should cost.

By 1914, when the state of Iowa turned to Conde McCullough for help, this problem was well on its way to solution. The state had started helping the counties out with free bridge plans and consultation services, which made it a lot harder for a bridge salesman to parachute into the county seat and sell a bunch of farmer-leaders a line of garbage; plus, everybody in government by then knew somebody who knew somebody who’d been burned.

No, the problem McCullough faced was that the owner of one of those bridge companies — Luten, of course — had discovered that he could make more money shaking counties and states down with dubious patent-infringement lawsuits than he could make building bridges.

Luten was playing a pretty long game. He’d started it around 1900 by “throwing spaghetti at the wall” of the patent office, using slight modifications to common bridge architecture elements to claim patent protection on them. One or two of these were legitimate; the majority were not. Not all of Luten’s dubious patent filings stuck, but some of them did, and as a result basically every reinforced-concrete arch bridge in the world suddenly became, legally, an infringement on his patent.

So Luten lawyered up and started shaking governments down. His typical “royalty fee” demand was 10 percent of the construction budget, so you can see how this could add up to a pretty nice income for him.

Everyone knew what he was doing. The problem was, it would cost a ton of money to fight him, because the burden of proof was not on him. He had a patent. Anyone who wanted to argue with him could go ahead and spend huge amounts of money fighting him in court, or settle the matter for a lot less money by just paying his ransom.

And that was how it went, at first. If you were a Dubuque County Commissioner, you didn’t have the resources or the expertise to do the research and pay the lawyers to fight a claim for a few tens of thousands of dollars for your three or four “infringing” bridges.

That changed, though, when states like Iowa got involved ... and hired competent bridge engineers like Conde McCullough.

Knowing their potential exposure to Luten’s shakedowns ran far into the future and involved millions of dollars, the Iowa highway department pulled McCullough off his other duties and tasked him with taking Luten down.

Three years later, in 1918, a judge was looking over the 600-page report McCullough and his staff had produced, along with 15 bridge models and hundreds of other exhibits. They laid the case out very clearly and in ways a layman could clearly grasp: Luten’s patents had been issued for concepts that were already well known, published, and in the public domain.

The judge banged his gavel and invalidated most of Luten’s patents.

McCULLOUGH’S HANDLING OF the patent troll had brought him nationwide fame in highway-engineer circles. He now had some opportunities for advancement that he probably hadn’t had before. If he’d wanted to, he probably could have landed a job anywhere in the country; or, of course, stayed in Iowa.

He chose to move to Oregon. In 1916, he packed up his family — he and his wife Marie Roddan McCullough and their infant son John, the first of their five children — and settled in Corvallis, taking a professorship at Oregon State University, then known as Oregon Agricultural College.

Why Oregon?

It cannot possibly be a coincidence that Samuel Lancaster’s famous and legendary Columbia River Highway No. 100 was nearing completion at that time. (Here's a link to an Offbeat Oregon article about that.) The highway was all over the national media, in postcards and magazine spreads. It seems highly likely that McCullough, looking around for places where he could put his skills and aesthetic sensibilities to best use, settled on the state that had just demonstrated it shared his design values.

Conde McCullough spent the next three years teaching at OAC. Meanwhile, he wasn’t the only one drawing inspiration from Lancaster’s masterpiece, the Columbia River Highway. It was a popular destination for excursions, so thousands of people came to see and drive (or ride) on it, then returned home to wherever they lived and compared local efforts unfavorably with it. The same bridge-company hucksters who McCullough had helped run out of Iowa were still closing sales and building rickety garbage spans over Oregon rivers and creeks. Public pressure started to build for the state of Oregon to get involved, like the state of Iowa had.

In 1917, they did — creating a powerful Highway Commission and starting it off with a $6 million endowment. The following year, state representatives Loyal Graham and W.B. Dennis created the nation’s first gasoline tax to provide continuing funding. (Here is a link to the Offbeat Oregon article on that.) And the year after that, they took the very obvious step of reaching out to OAC’s rising-star bridge architect and offering him the job of handling its bridges for it.

McCullough doesn’t seem to have hesitated. He promptly “deputized” his entire senior class of OAC engineering students and moved to Salem to start the most productive phase of his career — the phase that would end with his name associated with five spectacular bridges on the Oregon Coast Highway along with dozens of smaller spans, all sharing a distinctive design architecture that screams “Oregon bridge” at a glance as well as an engineering excellence that’s kept almost all of them in continuing service to this day, nearly a century later.

We’ll talk about Conde McCullough’s work as Oregon’s bridge-architecture czar, throughout the 1920s and 1930s, in next week’s column.  

(Sources: Elegant Arches, Soaring Spans, a book by Robert W. Hadlow published in 2001 by Oregon State University Press; Historic Highway Bridges of Oregon, a book by Dwight Smith & al. published in 1989 by OSU Press.)