EPLAW Patent Blog

UK - Virgin Atlantic Airways Limited v Contour Aerospace Limited and others

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 [2012] 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:

UK - Gemstar-TV Guide International Inc. v Virgin Media Limited

Gemstar-TVGuide International Inc, Starsight Telecast Inc, United Video Properties Inc v. Virgin Media Ltd, Virgin Media Payments Ltd, Case No. [2011] EWCA Civ 302

The English Court of Appeal has dismissed the appeal by Gemstar against the earlier judgment of the Patents Court, which held that three of Gemstar's patents relating to various uses of electronic programme guides (interactive on-screen menu systems for digital television) were invalid.

The first instance judgment considered issues of novelty, obviousness and whether the claimed inventions were patentable at all or consisted of unpatentable excluded subject matter.  The appeal was only concerned with two of the three patents.  Rather than hear arguments on all the potential issues, the Court of Appeal considered novelty first, as if Gemstar could not succeed on this point, the appeal would be bound to fail.  In the event the Court of Appeal agreed with the first instance judge that the patents lacked novelty and that disposed of the appeal.  Although it would have been interesting to see the Court of Appeal's views on excluded subject matter, this judgment nevertheless provides a good illustration of the Court of Appeal's willingness to split the issues before it, in order to determine the case as expeditiously as possible.

A further issue worth noting was the comment made by Lord Justice Jacob (in one of his last judgments before his retirement from the Court of Appeal) regarding translations.  He strongly disapproved of the amount of time that had been taken up by disputes over the correct translation of prior art documents.  The judge's view was that in future any issues concerning translations should be determined at an early stage of the proceedings, if necessary by way of a court hearing specifically for that purpose.  It will therefore be important in future that litigants in the UK identify any potential issues concerning translations quickly and seek to resolve them without delay.

Read the judgment (in English) here.

Head note: Graham Burnett-Hall

UK - Virgin v. Delta and Virgin v. Premium

Virgin Atlantic Airways Ltd v. Delta Air Lines Inc, Court of Appeal, London, UK, 23 February 2011, [2011] EWCA Civ 162 and Virgin Atlantic Airways Ltd v. Premium Aircraft Interiors UK Ltd. & Anor, Court of Appeal, London, UK, 23 February 2011, [2011] EWCA Civ 163

The Court of Appeal has handed down two judgments in the long running litigation regarding Virgin Atlantic Airways’ patent EP (UK) 1 495 908 for flat-bed aircraft seats.

In 2007 Virgin commenced infringement proceedings against Premium Aircraft Interiors UK (known as “Contour”) who manufacture business class seats for a number of airlines including Delta and Air Canada. Contour counterclaimed that the patent was invalid and commenced opposition proceedings at the EPO. In 2009, the Patents Court held the patent to be valid but not infringed but later on that year on appeal the Court of Appeal overturned the finding of non-infringement and held the patent to be valid and infringed. Virgin subsequently requested appropriate remedies in view of this decision pending the decision of the TBA of the EPO.