Lufthansa Technik AG (a company incorporated under the laws of the Federal Republic of Germany) v Astronics Advanced Electronic Systems (a company incorporated under the laws of the state of Washington, USA)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 22 July 2020 |
| Neutral Citation | [2020] EWHC 1968 (Pat) |
| Date | 22 July 2020 |
| Docket Number | Claim Nos: HP-2017-000085 & HP-2019-000019 |
| Court | Chancery Division (Patents Court) |
[2020] EWHC 1968 (Pat)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Claim Nos: HP-2017-000085 & HP-2019-000019
Hugo Cuddigan QC and Christopher Hall (instructed by Jones Day) for the Claimant in both actions
Piers Acland QC and Stuart Baran (instructed by Hogan Lovells International LLP and Pinsent Masons LLP) for the Defendants in both actions
Hearing dates: 22 – 26 June and 1 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Contents
| Topic | Paragraph |
| Introduction | 1 |
| The witnesses | 7 |
| The skilled person | 9 |
| The Patent | 19 |
| The claims in the Patent | 45 |
| Quintel | 46 |
| The construction of the claims in the Patent | 63 |
| The first construction Issue | 67 |
| The second construction Issue | 80 |
| The third construction Issue | 95 |
| The fourth construction Issue | 97 |
| Novelty: the legal principles | 107 |
| The disclosure in Neuenschwander | 112 |
| The issues as to the disclosure in Neuenschwander | 143 |
| The disclosure in Sellati | 163 |
| The issue as to the disclosure in Sellati | 175 |
| Conclusions on novelty | 183 |
| Inventive step | 192 |
| The common general knowledge | 199 |
| The EmPower System | 200 |
| The ARINC specification | 207 |
| The safety problems | 209 |
| The mindset of the skilled person | 217 |
| Cross-examination as to the FAA memorandum | 239 |
| The inventive concept | 245 |
| Is claim 1 of the Patent obvious over Sellati? | 246 |
| Is claim 1 of the Patent obvious over Neuenschwander? | 261 |
| Is claim 2 of the Patent obvious over Sellati? | 265 |
| Is claim 2 of the Patent obvious over Neuenschwander? | 272 |
| Infringement | 273 |
| The overall result | 290 |
Introduction
This is an action for patent infringement. The patent in suit is EP (UK) 0 881 145 B1 (“the Patent”). The Patent was granted on 26 November 2003 with a priority date of 31 May 1997. The Claimant was the original patentee. The Patent expired on 22 May 2018.
Claim 1 of the Patent described the invention as a voltage supply apparatus for providing a supply voltage for electric devices in an aeroplane cabin. The invention was intended to enable an aeroplane passenger to plug his personal electronic device directly into a socket at his seat. The power supply to the socket was to be high voltage AC and the aim of the invention was to ensure a high level of safety in relation to such a supply to a socket in the seat. Before the invention, some aeroplane seats did have a socket into which a passenger could plug his personal electronic device but the power supply was low voltage DC and it was necessary to use an adapter to plug the device into the socket.
In this judgment, I will refer to an in-seat power supply as an ISPS and an in-seat power supply system as an ISPSS.
There are two actions which have been heard together The Claimant is the same in both actions. In the first action, the Defendants are Astronics Advanced Electronic Systems (“Astronics”) and Safran Seats GB Ltd (“Safran”). In the second action, the Defendant is Panasonic Avionics Corporation (“Panasonic”). All the Defendants were represented by the same counsel at the trial.
The Defendants contend that the relevant claims in the Patent were invalid as the alleged invention or inventions were not new and, further, lacked an inventive step. These issues require the court to construe the claims in the Patent and also to interpret the prior art, which comprises two earlier patents. If I hold that the Patent was valid, then there are issues as to the alleged infringement by the various Defendants, in relation to which the relevant circumstances are not identical.
Mr Cuddigan QC and Mr Hall appeared on behalf of the Claimant and Mr Acland QC and Mr Baran appeared on behalf of the Defendants. I am grateful to them all for their considerable assistance.
The witnesses
I heard evidence from two experts. The Claimant called Professor Patrick Wheeler of Nottingham University. His discipline is electrical and electronic engineering. The Defendants called Mr Douglas Jay Barovsky, a senior consultant at Engineering Systems Inc., an engineering and scientific investigation and analysis firm with its headquarters in Illinois, USA. Mr Barovsky is based in Seattle and, for many years, worked for The Boeing Company. He has therefore had experience in the aerospace sector and he was a Federal Aviation Authority (“FAA”) Designated Engineering Investigator (“DER”). The background and experience of the two experts was not the same. There was much on which they disagreed. Where they disagreed, the reasoning they relied upon was thoroughly examined in cross-examination. Whether I accept their evidence on any topic depends on whether I am persuaded by the reasoning they relied upon. I have found that I accept part of, but not all of, the evidence of each of them.
The experts disagreed as to who the skilled person would be in relation to the issues which arise in this case. With one possible exception, it was accepted that whatever skilled person was identified for one issue would be the same skilled person on all issues. As the identity of the skilled person is potentially material to a number of issues in this case, I will seek to resolve this issue at this stage before dealing with the other matters which arise.
The skilled person
It is necessary to know the identity of the notional skilled person for various reasons in this case but particularly in relation to the issue as to obviousness; section 3 of the Patents Act 1977, dealing with obviousness, specifically refers to “a person skilled in the art”.
The Claimant's skilled person, identified by Professor Wheeler in his first report, is a general electrical or electronic engineer. He would be a graduate with technical knowledge and experience of the design and implementation of power supply technology, together with the general safety considerations applicable to electrical devices. The skilled person would not be a new graduate acting alone. He would either have experience of power supply design and application in an industrial context from working for a couple of years in or with industry or would rely on another member of the team with corresponding experience. This skilled person would need an understanding of the relevant regulations and requirements applicable to power in an aerospace context. Although the skilled person may already have such an understanding, it was more likely that he would acquire that knowledge when he was asked to involve himself in designing an aircraft power supply. At that time, he could obtain relevant documents from the relevant regulatory body.
When cross-examined, Professor Wheeler accepted that his skilled person and any other member of his team would probably not have any experience of working in the aerospace sector. At times during his evidence, his idea of the skilled person was the person who would be asked to make the invention claimed in the Patent but without needing to design an ISPSS without the benefit of the Patent.
The Defendants' skilled person, described by Mr Barovsky in his first report, was an electrical engineer with an interest in power supply systems on an aeroplane, including those in the cabin. He would have a degree or equivalent qualification in electrical engineering and three to five years' experience working in the aeroplane business, either for an aircraft manufacturer or component manufacturer. He would be assisted by other individuals, for example, a representative from the aeroplane manufacturer (if he was working for a component manufacturer) or a representative from a component manufacturer (if he was working for an aeroplane manufacturer). If the skilled person were in the United States, he would seek the assistance of a FAA DER who would be responsible for ensuring compliance with the relevant FAA regulations and guidelines. If the skilled person were in the United Kingdom, he would make direct contact with the Civil Aviation Authority (“CAA”) or the Joint Aviation Authority (“JAA”).
It was common ground that the relevant skilled person was the person to whom the claims in the Patent were addressed and that would be a person with a practical interest in the subject matter of the claims in the Patent and with practical knowledge and experience of the kind of work in which the invention was intended to be used: see Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 at 242–243 and Teva UK Ltd v AstraZeneca AB [2012] EWHC (Pat) at [2]. Where there were specialists with a focus on the kind of work with which a patent is concerned, they were the relevant addressees of the patent and their...
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Lufthansa Technik AG (a company incorporated in Germany) v Astronics Advanced Electronics Systems (a company incorporated in the state of Washington, USA)
...dates: 3 & 4 November 2021 Approved Judgment Lord Justice Birss 1 This appeal relates to the judgment of Morgan J on 22 July 2020 ( [2020] EWHC 1968 (Pat)), in which he held that European Patent (UK) 0 881 145 B1 (“Electrical Power Supply Device”) was valid and was infringed by the defenda......
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Lufthansa Technik AG (a company incorporated under the laws of the Federal Republic of Germany) v Astronics Advanced Electronic Systems (a company incorporated under the laws of the state of Washington, USA)
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