Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group

JurisdictionEngland & Wales
CourtChancery Division (Patents Court)
Judgment Date21 Jan 2009
Neutral Citation[2009] EWHC 26 (Pat),[2009] EWHC 451 (Pat)
Docket NumberCase No: HC-07-C1905

[2009] EWHC 26 (Pat)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

Before: The Honourable Mr. Justice Lewison

Case No: HC-07-C1905

Between
Virgin Atlantic Airways Limited
Claimant
and
(1) Premium Aircraft Interiors Group Limited
(2) Premium Aircraft Interiors UK Limited
Defendants

Mr Richard Meade QC, Mr Henry Ward and Miss Jessie Bowhill (instructed by DLA Piper UK LLP) for the Claimant.

Mr Mark Vanhegan and Miss Kathryn Pickard (instructed by Wragge & Co. LLP) for the Second Defendant.

Hearing dates: 12,13,14,17,18,19,20,21,24,25,27,28 November 2008

HTML VERSION OF JUDGMENT

Mr Justice Lewison:

Introduction

1

Background

3

Aircraft seat design

9

The process of designing a new seat: an overview

15

Unregistered design right

19

The statutory provisions

19

What is a design?

24

What is an aspect of the shape or configuration of an article?

26

Self-selection

27

Reproduction

31

Copying: the approach to the evidence

34

Did Acumen or Contour copy UCS?

38

The expert witnesses on design

47

Mr Moreno

47

Professor Darbyshire

49

The development of the UCS seat

54

Cathay Pacific and the Rock project

75

Preliminary work

75

May 2004

84

The May LOPAs

97

The presentation and afterwards

106

Air Canada

111

Wholesale copying: conclusions

134

The individual designs

136

The ottoman shape

136

Ottoman backshield

145

The combination of the ottoman and backshield

150

The central privacy screen

151

Combination of privacy screen and ottoman end section

161

The Passenger Accommodation Unit

164

The 3 and 4 Passenger Accommodation layouts

178

What Contour make

179

The patent: principles of construction

182

The experts on patent issues

189

Mr Moreno

189

Mr Chapman

190

The skilled addressee

191

Common general knowledge

193

The 908 patent

201

Issues of construction of the patent

218

Each seat unit defining a notional longitudinal seat axis C-C

218

each seat unit…further comprising means forming or being configurable

for forming a substantially flat bed (47, 48, 67, 74, 76)

222

when the seat unit is formed into a bed a major proportion of the bed

is disposed forwardly of the position that was occupied by the seat

230

wherein at least some of the seat units are arranged to be disposed

adjacent a sidewall of the aircraft and face inwardly

thereby to define between the rear of each seat and the side wall a space

when the seat unit is configured as a seat

and the flat bed extends into said rearward space behind the seat.

235

Subsidiary claims

243

Claim 2

243

Claims 4 to 6

244

Claim 9

245

Validity

251

Anticipation

252

The prior art

255

BA First

255

Airbus Patent Application

264

Boeing

266

American Airlines

268

Obviousness

269

The law

269

Step by step

274

The skilled addressee

276

The inventive concept

277

Common general knowledge

280

Differences between the inventive concept and common general knowledge

280

Were the differences obvious?

283

BA First

286

Differences between the inventive concept and BA First

286

Were the differences obvious?

287

Airbus/Boeing

290

Differences between the inventive concept and Airbus/Boeing

290

Were the differences obvious?

292

American Airlines

295

Differences between the inventive concept and American Airlines

295

Were the differences obvious?

298

Added matter and loss of priority

300

Prosecution history

301

Legal test

304

The First Priority Document—GB Patent Application 0119459.6

315

The Second Priority Document—GB Patent Application 0202389.3

323

The parent patent application

331

Result

343

Introduction

1

How does a business class passenger choose an airline? If you believe the advertising, the comfort of the seat is one of the most important factors. But it is not just the advertising. When Virgin Atlantic introduced its flat-bed seat into its Upper Class in November 2003 it achieved an increase in market share on its long haul routes of 12 per cent. So the numbers tell the same story. Virgin Atlantic's flat-bed seat is known as the Upper Class Suite (or “UCS”) and is the commercialisation of a seat and seating system disclosed by patent EP (UK) 1,495,908 (the “908 patent”). The UCS was manufactured for Virgin Atlantic by Premium Aircraft Interiors UK Ltd (known as “Contour”). Virgin Atlantic allege that Contour has manufactured other seats (known as “Rock” or “Solar Eclipse”, and a derivative called “Solar Premiere”), or kits for those seats, that infringe the 908 patent; and also allege that in working up the detailed designs of those seats Contour and its external designers, Acumen, have infringed its unregistered design rights in parts of the UCS. Contour deny all these allegations.

2

Mr Richard Meade QC, Mr Henry Ward and Ms Jessie Bowhill presented the case for Virgin Atlantic. Mr Mark Vanhegan and Ms Kathryn Pickard presented the case for Contour. The case was exceptionally well argued on both sides. A mass of points were taken both in relation to the design right issues and the patent issues. I have not found it necessary to deal with all of them. But I have, I hope, made all necessary findings of fact. The trial was mainly taken up with a detailed investigation of the question whether the Solar Eclipse was (or was based on) a copy of Virgin Atlantic's UCS. It is convenient to deal with that question first.

Background

3

In the early inter-war years of long distance air travel passengers were able to sleep on long haul flights fully recumbent; and were also able to dine with each other face to face. But the economics of air transport led the airlines to abandon that arrangement in favour of packing more passengers into their aircraft. Thus the almost invariable arrangement of accommodation for passengers was for the cabin to contain forward facing seats arranged in columns and rows. Depending on the class of travel, the width of the seats, and the pitch (or distance between them) could vary considerably, as the economy passenger, making his way through first or business class to the rear of the aircraft, knew only too well.

4

For the first class passenger, all this changed in 1996. In that year British Airways (“BA”) introduced a new seating system for its first class cabin called BA First, which allowed for a completely flat bed. The seat had been designed by Design Acumen (“Acumen”), a design house, and was design engineered and built by Contour for BA. It provided seats in individual “pods” or compartments formed by privacy screens. Each compartment consisted of both a seat and an ottoman (or footstool) which could be used both as part of the bed when the seat was laid flat and also as occasional seating by a guest passenger (hence it is sometimes called a “buddy seat”); and each seat was at a slight angle to the longitudinal axis of the plane, facing towards the cabin wall. This angled arrangement of seats is called a “herringbone”. Where the seats face towards the aisle the herringbone is called an “inward facing herringbone”; otherwise it is called an “outward facing herringbone”. The BA seating arrangement was an outward facing herringbone, which BA had adopted in preference to an inward facing herringbone because it gave passengers more privacy. Acumen had proposed both an inward facing herringbone and an outward facing herringbone; and mock-ups of both arrangements were made. It was the outward facing herringbone that was commercialised. BA patented its seat and seating system following a patent application filed in December 1995, which disclosed both the outward facing herringbone and the inward facing herringbone. I will revert to the details of this later.

5

BA First was enthusiastically received in the design world. Design Week gave it the award for “Product of the Decade”. Acumen were also the winners of many design awards for BA First. Mr Dryburgh, the managing director of Acumen, was justifiably proud of his company's achievement. In addition the launch of BA First caused a considerable stir within the airline industry itself. All the main airlines decided that they needed to emulate BA's ground-breaking idea; otherwise they were at risk of losing the highest paying passengers. A number of airlines immediately adopted the outward facing herringbone layout, the use of an ottoman and privacy screens to provide competitive products. These included United Airlines (UAL), American Airlines (AA), Swissair and many others. The introduction of flat-bed seats was, at this stage, limited to first class passengers. Because first class passengers pay such a lot of money for their tickets, the airlines could afford to be relatively generous with the space allotted to each passenger; mainly because the price of a first class ticket could be increased to counteract the loss of passenger numbers without adversely affecting overall revenue.

6

In 2000 American Airlines launched its Flagship Suite. It was also an outward facing herringbone. The particular innovation of this seat was that it was a swivelling seat. This meant that the passenger could face forward for take off and landing; and swivel the seat into one position in order to work or eat at a table, and to another position when the seat was converted into a bed. The swivelling seat was made possible because the aircraft in which it was installed had wide bodies. Acumen designed this seat as well. American Airlines also patented its seat and seating system. Again, I will revert to the details of this...

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