Virgin Atlantic Airways Ltd v Jet Airways (India) Ltd and Another
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE FLOYD,Mr Justice Floyd |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2153 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HC 08 C01575 HC08 C01578 HC10 C00543 CH/2012/0082 |
| Date | 27 July 2012 |
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice
Rolls Building London EC4A1NL
The Hon Mr Justice Floyd
Case No: HC 08 C01575
HC08 C01577
HC08 C01578
HC10 C00543
CH/2012/0082
Richard Meade QC, Alan Maclean QC and Henry Ward (instructed by DLA Piper UK LLP) for Virgin Atlantic Airways Limited
Iain Purvis QC and Brian Nicholson (instructed by Wragge & Co. LLP) for Contour Aerospace Limited and Premium Aircraft Interiors Limited
Adrian Speck QC and Pushpinder Saini QC (instructed by Bird & Bird LLP) for Air Canada
Benet Brandreth instructed by Wragge & Co LLP for Delta Air Lines, Inc
Fiona Clark (instructed by The Treasury Solicitor) for The Comptroller-General of Patents
Hearing dates: 21–22, 25–29 June and 3–5 July 2012
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.
Index
| Paragraph | |
| Introduction and procedural background | 1 |
| The Contour Action and the Airline Actions | 8 |
| The Delta Undertaking | 12 |
| Inquiry as to damages and the Unilin point | 13 |
| The Technical Board of Appeal decision | 14 |
| The consequences of the TBA decision—damages | 16 |
| The consequences of the TBA decision—Delta summary judgment | 17 |
| The Rule 50 application | 19 |
| The Divisionals | 20 |
| Representation | 22 |
| Witnesses of fact | 23 |
| Expert witnesses | 24 |
| Prior aircraft seating arrangements | 35 |
| The skilled addressee | 44 |
| The specification of 908 | 45 |
| The claims | 70 |
| Issues of construction | 71 |
| Feature 21 | 72 |
| Feature 22 | 87 |
| "A passenger seating system for an aircraft" | 89 |
| Feature 12 | 108 |
| Infringement of 908 | 109 |
| Virgin's primary case—headrest | 115 |
| Virgin's secondary case—rear console | 116 |
| The abuse of process argument | 121 |
| Variant solar eclipse headrest | 124 |
| Infringement of 711 | 126 |
| Infringement of 734 | 128 |
| Modified Solar Eclipse | 130 |
| Validity | 131 |
| Added Matter | 132 |
| "at least some" | 134 |
| Feature 21 | 136 |
| Obviousness | 141 |
| BA First disclosure | 143 |
| Issue of construction | 146 |
| Agrevo obviousness | 155 |
| Obvious modification of BA | 159 |
| Validity of 711 | 170 |
| Validity of 734 | |
| Obviousness | 171 |
| Added matter | 173 |
| The Delta undertaking | 176 |
| The non-designation point | |
| Facts—events up to grant of 908 | 187 |
| Facts—events in the EPO post grant | 199 |
| Proceedings before the Comptroller | 205 |
| The defendants' case and Virgin's answer | 206 |
| Relevant provisions of the EPC | 209 |
| Relevant UK legal provisions | 214 |
| The English common law approach to decisions of public authorities affecting individuals | 217 |
| 219 | |
| Treaties do not confer directly enforceable rights | 223 |
| The principle of non-justiciability | 225 |
| The domestic foothold principle | 232 |
| The follow up to Lenzing | 247 |
| The Rule 50 appeal | 252 |
| Conclusions | 255 |
Introduction and procedural background
In these proceedings, Virgin Atlantic Airways Limited ("Virgin") alleges infringement of three European patents. They are numbers 1 495 908, 2 272 711 and 2 289 734. For convenience I will use the last three numbers 908, 711 and 734.
There are three infringement actions, brought against the airlines Delta Air Lines Inc. ("Delta"), Air Canada, and Jet Airways (India) Limited ("Jet"). Contour Aerospace Limited ("Contour") is joined as a defendant to each of those actions with the relevant airline. Contour is an aircraft seat manufacturer. All three patents are in suit in these actions. By an order I made on 19 October 2011, the issues of alleged joint tortfeasance between these parties have been stayed, to be decided if necessary in any inquiry as to damages or account of profits. Jet has not taken any recent active part in the proceedings, but Delta and Air Canada have. In each action there is a counterclaim for revocation of the patents.
There is a fourth action before me, between Contour and Virgin, in which Contour seek a declaration of non-infringement in respect of a modified design of seat.
Finally, an appeal by Premium Aircraft Interiors ("Premium", a company in the Contour Group) from a decision of the United Kingdom Intellectual Property Office (UKIPO) is also before me. The appeal relates to the propriety of the United Kingdom being designated in respect of 908. This point is also raised by way of defence in the infringement actions.
The 908 patent was granted in May 2007. It was the subject of an opposition in the European Patent Office ("EPO") by Premium, as well as Airbus Industrie, the aircraft manufacturer, and Cathay Pacific, the airline. The opposition proceedings ultimately resulted in the patent being amended, so as to restrict its scope from that which was the subject of the original grant. In what follows I will endeavour to refer to "unamended 908" and "908" to indicate the unamended and amended patents respectively.
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 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. In this introduction, it will be important to keep in mind these distinct aspects of what is disclosed in 908: space-saving and flip-over.
The parties have been engaged in litigation for some years over the sale and supply of Contour's Solar Eclipse seat which is alleged to infringe 908 both before and after amendment. The procedural history is relevant, somewhat complicated, and as follows.
The Contour Action and the Airline Actions
Virgin sued Contour before the opposition proceedings had come to an end for infringement of unamended 908. These earlier proceedings are referred to as "the Contour Action".
Before the Contour Action reached trial, Virgin sued three customers of Contour, the airlines Delta, Air Canada and Jet, in the present three "Airline Actions", alleging that the airlines were liable for infringement of unamended 908 as joint tortfeasors with Contour. Those actions were stayed by formal or informal agreements pending the outcome of the Contour Action.
In the Contour Action at first instance, before Lewison J as he then was, Virgin were unsuccessful. Lewison J held unamended 908 to be valid over the cited prior art (principally BA First, Airbus and common general knowledge alone). He went on to hold that unamended 908 was not infringed by the Solar Eclipse seat. He held that the claims were limited to the flip-over mechanism, a feature not taken by the Solar Eclipse. Both sides appealed the respective adverse findings. Lewison J's judgment was given on 21 st January 2009.
On 22 nd October 2009 the Court of Appeal gave judgment on the appeal. The Court of Appeal reversed Lewison J's decision on infringement of unamended 908, holding that the claims were not limited to flip-over seats. Lewison J's judgment that the unamended patent was valid over the cited prior art and common general knowledge was upheld, notwithstanding the wider construction adopted for the purposes of infringement. In short, the invention with which 908 was concerned was the space-saving invention: and that invention remained novel and inventive having regard to the cited prior art.
The Delta undertaking
After judgment in the Court of Appeal in the Contour Action, Contour asked the Court of Appeal to allow certain run-off supplies of Solar Eclipse seats to Delta pursuant to existing contractual arrangements. The Court of Appeal permitted this. Contour was required to procure undertakings from Delta not to use the Solar Eclipse seats on transatlantic routes competitive with Virgin. There is an issue between Virgin and Delta as to whether that undertaking applies after the amendment of the 908 patent.
Inquiry as to damages and the Unilin point
Virgin had by now succeeded on both infringement and validity. In consequence, the Court of Appeal ordered an inquiry as to damages. Contour applied for permission to appeal to the Supreme Court in relation to the findings of infringement and validity, as well as in relation to the inquiry as to damages. The latter application for permission to appeal related to the point which arises out of the judgment in Unilin Beheer v Berry Floor [2007] EWCA Civ 364 as to recovery of damages at a time when validity is still in issue, as it was here, in opposition proceedings before the European Patent Office ("the Unilin point"). Under the law as it stands, this fact alone does not provide a ground for a stay of an inquiry as to damages, because damages are payable even if the patent is subsequently revoked or amended. The Supreme Court refused permission to appeal on the patent points, as well as, at this stage, on the Unilin point.
The Technical Board of...
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