Virgin Atlantic Airways Ltd v Delta Airways Inc.
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE ARNOLD |
| Judgment Date | 30 November 2010 |
| Neutral Citation | [2010] EWHC 3094 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HC08C01577 |
| Date | 30 November 2010 |
[2010] EWHC 3094 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before: The Hon Mr Justice Arnold
Case No: HC08C01577
Richard Meade QC and Henry Ward (instructed by DLA Piper LLP) for the Claimant
Mark Vanhegan QC and Brian Nicholson (instructed by Wragge & Co LLP) for the Defendant
Hearing dates: 17–18 November 2010
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.
MR. JUSTICE ARNOLD:
Contents
| Topic | Paragraphs |
| Introduction | 1 |
| The Contour Action | 2–20 |
| The judgment of Lewison J | 7–12 |
| The first judgment of the Court of Appeal | 13–19 |
| The second judgment of the Court of Appeal | 20 |
| The Oppositions | 21–24 |
| Subsequent events in the EPO | 25–26 |
| The Customer Actions | 27 |
| Other pending proceedings and applications | 28 |
| Comment | 29 |
| Virgin's claim against Delta | 30–31 |
| Principles applicable to summary judgment applications | 32–33 |
| Summary judgment in patent cases | 34–36 |
| Summary judgment in the present case | 37–42 |
| Delta's case in summary | 43 |
| Virgin's case in summary | 44 |
| Delta's fallback position | 45 |
| Claim 2 | 46 |
| Construction of patent claims: the law | 47–49 |
| The skilled team | 50 |
| The common general knowledge | 51 |
| The Patent | 52–53 |
| Claim 1 of the Patent as amended | 54 |
| What is the effect of Delta's acceptance of the findings in the Contour Action? | 55–56 |
| Construction of claim 1 | 57–84 |
| Integer [1] | 58–60 |
| Integer [3] | 61–63 |
| Integer [6] | 64 |
| Integer [7] | 65–66 |
| Integer [8] | 67–70 |
| Integer [12] | 71 |
| Integer [13] | 72 |
| Integer [15] | 73 |
| The subsidiary claims | 74–77 |
| The inventors’ purpose | 78–79 |
| Avoidance of meticulous verbal analysis | 80–81 |
| Fair protection for the patentee | 82 |
| Reasonable certainty for third parties | 83 |
| Conclusion | 84 |
| Infringement | 85–136 |
| Statutory provisions | 86–87 |
| Infringement under section 60(2) | 88–90 |
| Domestic case law on infringement by dealingsin a kit of parts | 91–109 |
| Foreign case law on infringement by dealings in a kit of parts | 110–126 |
| The parties’ submissions | 127–128 |
| Analysis | 129–135 |
| Conclusions | 136–137 |
| Postscript | 138 |
Introduction
1. The Defendant (“Delta”) applies for summary judgment dismissing a claim by the Claimant (“Virgin”) against Delta for infringement of European Patent No. 1 495 908 (“the Patent”). Summary judgment applications in patent cases are unusual for the reasons considered below, but the circumstances giving rise to the present application are even more unusual. Although the key issues raised by the application lie within a narrow compass, the background to them is somewhat complicated, because it involves a number of sets of proceedings concerning the same Patent. It therefore necessary to describe the various proceedings before I can come to the points which matter for present purposes.
The Contour Action
2. Virgin is a well-known airline, as is Delta. Between early 2000 and September 2003 Virgin, with assistance from other parties, developed what became known as its Upper Class Suite (“UCS”) seat for use in the first class and business class cabins of its long-haul aircraft. This is a seat that converts into a flat bed. The UCS was manufactured for Virgin by Premium Aircraft Interiors UK Ltd trading as “Contour”. Virgin has sought to protect the design of the seat, of “seating systems” comprising a plurality of seats and of aircraft cabins comprising such seating systems by means of the Patent and a number of related European patents and patent applications. I was told that it also has related patents and applications elsewhere, included in the USA.
3. On 20 July 2007 Virgin commenced proceedings against Contour (“the Contour Action”) alleging that Contour had infringed both the Patent and unregistered design rights in the design of various aspects of the UCS. These allegations related in particular to a design of seat called “Solar Eclipse” which Contour was manufacturing for a number of airlines, including Delta. These claims were tried before Lewison J over three weeks in November 2008. As Lewison J recorded in his judgment dated 21 January 2009, [2009] EWHC 26 (Pat) (partly reported at [2009] ECDR 11) at [2], “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”. As a result, there was extensive disclosure by Contour and evidence at trial as to precisely what Contour had done.
4. It is important to note that the Patent as granted, and as it stood before Lewison J, included claims to both “a passenger seating system” (claims 1–12) and to “a seat unit” (claims 13–19). It should also be noted that at that time the Patent had different claims for the UK and for other EPC contracting states. It is not necessary to go into the reasons for this.
5. I shall set out claim 1 as granted below. Claim 13 as granted was as follows:
“A seat unit for a passenger seating system for an aircraft, the seat unit defining a notional longitudinal seat axis (C-C) and comprising a supporting structure (42) adapted for attaching the seat unit to a floor of an aircraft (12) and means forming or being configurable for forming a seat comprising a seat-pan (71) and a back rest (72), said seat unit being adapted to be arranged side-by-side with at least one further seat unit to form a column defining a notional longitudinal column axis (B-B), in which column said seat-unit is adapted to be arranged in longitudinally offset relation at an acute angle to the notional column axis (B-B), the seat unit being arranged to be disposed adjacent a sidewall (26,28) of the aircraft and face inwardly thereby to define between the rear of each seat and the sidewall a space (36) when the seat unit is configured as a seat, the seat unit further comprising means forming or being configurable for forming a substantially flat bed (47,48,67,74,76), so that 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, and characterised in that the flat-bed extends into said rearward space (36) behind the seat”
6. Virgin alleged that Contour had infringed both types of claims, and in particular had infringed both claim 1 and claim 13. Contour denied infringement of both types of claims. Shortly before trial, Contour served evidence (the second witness statements of Mark Davies and Bruce Gentry) which addressed the question of the extent to which Contour had assembled a number of Solar Eclipse seats together, in particular during the course of First Article Inspections (“FAIs”) carried out for Air Canada, Delta and Jet Airways (collectively, “the Airlines”). This evidence was relevant to the question of whether Contour had infringed the seating system claims as distinct from the seat unit claims. When opening the case, counsel for Virgin submitted to Lewison J that this late evidence “does not matter very much”, because in any event Virgin relied on claim 13, which was to an individual seat unit. Importantly, Contour's case at trial, as set out in its opening skeleton, its written closing submissions and in its counsel's oral closing submissions, was that: (i) in order to infringe the seating system claims, it was necessary for the seat units to be assembled and arranged “on an aircraft”; and (ii) there was no infringement of those claims if, as Contour contended was the case, the assembly and arrangement of the seat units took place outside the UK.
The judgment of Lewison J
7. Lewison J found that Contour had not copied the design of the UCS, and therefore dismissed Virgin's claim for infringement of design right. In a section of his judgment between the sections dealing with design rights and the Patent, he made the following findings of fact:
“179. Although I have decided that the claim for infringement of design right fails, I must nevertheless set out the facts about what Contour actually do, in case I am wrong in my conclusion. The facts were more or less common ground. They are relevant both to the case on design right and also to the case on patent infringement.
180. Contour manufacture and supply Solar Eclipse and its derivatives into individual passenger accommodation units PAUs. The manufacturing takes place in the United Kingdom at Contour's premises in Cwmbran. They do not make delivery of individual PAUs since it is more usual for customers to insist upon the full number of PAUs for a shipset to be delivered in one go. However the shipset itself is assembled in its herringbone form on board the aircraft to be fitted with the shipset. To date all such assembly has taken place outside the United Kingdom. The assembly itself is carried out by the aircraft manufacturer or the airline's appointed maintenance provider.
181. Before shipment Contour temporarily assembles a small number of seat units on the shop floor (and without attachment to aircraft seat tracks) so that the customer and aircraft manufacturer can inspect them. However an entire shipset is never assembled in the UK for this purpose.”
8. Lewison J went on to make findings as to the skilled team to whom the Patent was addressed (at [191]–[192]) and their common general knowledge (at [193]–[200]). He then considered a number of issues of construction of claims 1, 2, 4–6 and 9, all of which were seating system claims (at [218]–[250]). He did not set out in his judgment, or construe, any of the seat unit...
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