Three proceedings between: Virgin Atlantic Airways Limited v Contour Aerospace Limited and others; Contour Aerospace Limited v Virgin Atlantic Airways Limited; On appeal: Premium Aircraft Interiors Limited v Comptroller General of Patents and Virgin Atlatic Airways Limited; High Court of Justice, Patents Court, Floyd J, London, UK, 27 July 2012, Case No  EWHC 2153 (Pat)
Virgin Atlantic Airways Limited (“Virgin”) alleged infringement of three of its European patents: EP(UK) 1 495 908, EP(UK) 2 272 711 and EP(UK) 2 289 734 (908, 711, and 734, respectively) by an aircraft seating system called 'Solar Eclipse'. Contour Aerospace Limited (“Contour”) is an aircraft seat manufacturer and maker of this seating system, the sale and supply of which is at the has been the subject of this and other proceedings for some years. 908 (in either amended or unamended form) relates to a seating system for passenger aircraft in which the seats are arranged in an “inward facing herringbone” configuration. The seats convert into lie-flat beds. The description in the 908 patent shows how the seats can be arranged in a space-saving configuration. In addition it shows how a flip-over mechanism can make use of the back of the seat as part of the lie-flat bed. The material difference between Claim 1 of 711 and claim 1 of 908 is that it is a claim to a seat unit, not a seating system for an aircraft. The significance of the claims of 734 is that they do not have the passenger support element found in the other two claims.
The five proceedings include: the three infringement actions together with validity attacks; a fourth action, between Contour and Virgin, in which Contour seek a declaration of non-infringement in respect of a modified design of seat; and, an appeal relating to the propriety of the United Kingdom being designated in respect of 908 because of alleged irregularities at the EPO. In the latter, Air Canada submit, supported by the other defendants, that the purported grant of the 908 patent so far as it designates the UK was a nullity, since Virgin either never designated or unequivocally elected to withdraw the designation of the United Kingdom in its application for that patent. Accordingly they submitted that Virgin could not show the existence of any enforceable property right, because no right was capable of being granted by the EPO without a valid designation or following such an unequivocal withdrawal.
The court held as follows on these issues:
· 908 is not infringed by the Solar Eclipse seating system either in its original form or with the variant form of headrest. In particular the requirement for a triangular passenger support element in the 908 claim 1 is not met by the Solar Eclipse headrest, nor the Solar Eclipse rear console and;
· 711 would not be infringed by Solar Eclipse seat units, either in their original form or with the variant form of headrest, for the same reasons as for 908;
· however, 734 would be infringed by the Solar Eclipse seating system and Solar Eclipse seat units both in their original form and with the variant form of headrest, because claims 1 and 10 of 734 lack the passenger support element that enabled Contour to avoid infringement of 908 and 711;
· Virgin accepted that the modified Solar Eclipse does not infringe any of the patents in suit entitling Contour to a declaration to that effect;
· subject to deletion of the words “at least some” in claim 1 of 908 and 734, and on the construction of the claims of 908, none of the patents is invalid for added matter;
· notwithstanding attacks on the basis of 'Agrevo-type' obviousness and 'conventional' obviousness none of the three patents is invalid for obviousness. In particular, Contour argued that the only distinction between the prior art ('BA First') and 908 and 711 is the triangular shape of the headrest, which is entirely arbitrary. However, the judge held that, in the context of the rest of the claim, the generally triangular headrest allows advantage to be taken of the triangular rearward space. This remains true, despite the fact that it is possible to devise arrangements where full advantage is not taken of the triangular shape, such as where the seat is spaced from the aircraft wall;
· the non-designation point failed. The defendants submitted that decisions of the EPO are justiciable in the English courts under modern principles of private international law. This is because the EPO purports to grant domestic private law rights. Virgin argued that the propriety of the designation of the United Kingdom is not a matter to be investigated in the English courts. The defence advanced amounts to a collateral attack on the decision of the EPO which the English court will not entertain. The provisions of the EPC concerned with grant operate only at an international level. The court also held that the EPC as a whole has decided where the line is to be drawn between those decisions which are to be capable of a full challenge and those which are not. The extent to which the designation of the UK may be challenged in proceedings before the EPO, namely by asking the appropriate division to review its decision, represents the agreement of the contracting states on where the line is to be drawn in that respect. The inability to challenge the designation of the UK in the national court does not violate the defendants’ Article 6 rights.
Read the decision (in English) here.
Head note: Paul England