UK - Virgin Atlantic v. Premium Aircraft

Virgin Atlantic v. Premium Aircraft, Court of Appeal (Civil Division), London, UK, 21 December 2009, Case No. [2009] EWCA Civ 1513

In previous proceedings, Contour, the defendant, had been found to have infringed Virgin Atlantic's patent for a specific design of aircraft seats which could be used as beds for long haul flights.  In this reported decision, questions relating to, inter alia, a stay of the inquiry as to damages and the terms of the final injunction were before the Court of Appeal. 

The Court of Appeal refused Contour's request for a stay of inquiry and held that a successful claimant is entitled to pursue an inquiry for damages even if there was a possibility of an appeal to a higher court. 

Regarding the terms of the injunction, it was held that an injunction with a carve-out permitting Contour to continue manufacturing infringing products provided certain conditions were met was appropriate.  The conditions required Contour to pay £10,000 to Virgin Atlantic for each infringing product manufactured, the parent company of Contour to give a guarantee and the buyer of the infringing products to give an undertaking that the planes concerned would not be used on a particular flight route which was already well-used by Virgin Atlantic. 

Read the judgment (in English) here.

Comments

[Jim Boff]

Dear Leo,

I agree with both of the points you make, but the file bears close inspection.

There was a specific disclaimer of the UK when the application was filed, and the opposition division have said there was an error in the application going to grant with a UK designation, but there was nothing they could do to fix it.

This is not simple.

Regards,

Jim

[Leo Steenbeek]

Dear Jim,

The request for grant form includes a designation of all EPC states. The applicant paid 7 designation fees, thereby paying for all EPC states. Anyhow, errors in designations are not an opposition ground.

Regards,

[Jim Boff]

Very interesting, considering that the patent is under opposition and part of the opposition is to consider whether the UK was validly designated.

Apparently, in the request for grant GB was specifically excluded and no specific correction to reinstate GB was made.