Legal Updates

Patent Infringement – Patent Proceedings – Court of Appeal Decision

In Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd [2009], the Court of Appeal, held that the that the judge had erred when he dismissed the claimant’s, Virgin Atlantic Airways, claim for patent infringement by Premium Aircraft Interiors UK regarding a new aircraft seating system. It was held by the Court of Appeal that the claimant's patent had been infringed by the defendant's seating system and the claimant’s patent was valid and subsisting.

When the claimant brought a claim for infringement of its European Patent EP (UK) 1,495,908, in relation to its novel seat and seating system for its aircraft and a claim for unregistered design rights in respect of parts of that seating system, the claim was dismissed. The claimant appealed to the Court of Appeal.

The points considered by the courts were:-

•  Whether the claim was limited only to systems using flip-over seats;
• The validity of the patent as the defendant were claiming that the claimant had added matter not disclosed in the original patent application;
• Whether claims 1 or 9 of the claimant’s patent were obvious as there was a prior patent application by Airbus.
• Whether claim 44 of the claimant’s patent was valid as a claim for a seating system with space packing;

The defendant asserted that if claim 1 of the patent extended to non-flip over seats then the patent did not disclose the matter which supported or was capable of supporting such a claim and therefore the patent was invalid in respect of added matter.

The Court of Appeal allowed the claimant’s appeal on the following grounds:-

• The judge had erred in deciding that the claim was limited to systems which used flip-over seats. The 'lost space' and the space-packing idea of using the bed to extend were wholly unrelated to whether or not the bed flipped over.
• Therefore, a person skilled in the art would have had no reason to suppose that the patentee intended to limit its claim to flip-over bed/seats and would have expected, if the claimed system was limited to flip-over bed/seats, to find this in the claim, which was not there.
• The test was for the court to determine what a person skilled in the art would have interpreted the language/meaning of the claim. The extent of protection was determined by the claims, and the claims were to be construed purposively. Furthermore, “...the claims could not be construed as if they stood alone; when ascertaining the inventor's purpose it had to be remembered that he might have several purposes depending on the level of generality of his invention; and the purpose could not be the 'be-all and end-all'. If the patentee had included what was obviously a deliberate limitation in his claims it had to have a meaning, obviously intentional elements could not be disregarded; and where a patentee had used a word or phrase which, acontextually, might have a particular meaning it did not necessarily have that meaning in context. Purposive construction could lead to the conclusion that a technically trivial or minor difference between an element of a claim and the corresponding element of the alleged infringement nonetheless fell within the meaning of the element when read purposively. The notional and skilled reader was to be taken as knowing about the use of numerals in a patent claim, about 'pre-characterising' and 'characterising' parts, and about the practice of divisional applications “
• The defendants bed fell within claim 1 and therefore infringed the patent as this claim was not limited to flip-over seats.
• The court had to consider the disclosure of the parent and the patent and determine in the strictest sense whether any subject matter relevant to the invention had been added whether by deletion or addition.
• It held that matter had not been added. The matter disclosed in the specification of the patent did not extend beyond that disclosed in the parent and the added matter objection therefore failed.
• The patent was therefore valid and infringed by the defendant. 

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.