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: