Readers of this weblog with good memories will recall the Kat's earlier post on the Virgin Upper Class seat litigation. To recap briefly, on Wednesday 21 January, in a mammoth judgment of some 344 paragraphs, Mr Justice Lewison ruled that Virgin Atlantic's Upper Class seat patent was valid but not infringed, and that its design rights weren't infringed either (Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd and Premium Aircraft Interiors UK Ltd  EWHC 26 (Pat), here).
This morning the Court of Appeal in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd and Premium Aircraft Interiors UK Ltd  EWCA Civ 1062, consisting of Lord Justice Jacob (who delivered the judgment of the Court), Lord Justice Patten and Mr Justice Kitchin, affirmed the lower court's finding that the patent was valid but, disagreeing with Lewison J, concluded that it had been infringed; Contour (as Premium likes to call itself) has been given 14 days to submit its application for a stay of any consequential order pending the decision of the EPO Board of Appeal with regard to Virgin's patent. The design right issue, which particularly interested the IPKat, was not raised in the appeal. This judgment is a lot shorter than that of the first instance decision, weighing in at a mere 133 paragraphs.
* After summarising Kirin-Amgen v Hoechst Marion Roussel [see earlier IPKat post here] and saying that one might suppose there was no more to say on the subject of claim construction after that ruling, the Court said:
"13. ... the skilled reader is taken to suppose that the patentee knew some patent law – that his claim is for the purpose of defining the monopoly and that it should be for something new. Knowledge of that may well affect how the claim is read – for instance one would not expect the patentee to have used language which covered what he expressly acknowledged was old. ...
Below: the IPKat appreciates seats which offer comfort plus plenty of leg-room* The dangers of hindsight were once again articulated, possibly since patent judges are more likely than the public at large, or the addressee of the patent, to travel Upper Class with Virgin or at least get those precious upgrades:
15. We think it would unrealistic – indeed perverse – for the law to say that the notional skilled reader, probably with the benefit of skilled advice, would not know and take into account the explicit drafting conventions by which the patent and its claims were framed. Likewise when there is a reference to the patent being a divisional application, it would be perverse to work on the basis that the skilled man would not know what that means. A real skilled man reading a patent which, as in the case of the Patent, refers to “the parent application” [ie the original application, to which reference is made in a subsequent one] would surely say “what’s a parent application?” – and he would go on to ask a man who knows, probably a patent agent".
"117. The real issue about obviousness is whether the skilled addressee, when faced with the prior art, would have considered it obvious to extend the seat in bed mode into the triangular space between the back of the BA seat unit and the cabin wall which, in BA First, remained unused except for storage as part of the adjacent seat unit. ...This member of the IPKat team suspects that one or other of his colleagues may wish to add some comments of their own -- and he's confident that the readers will do so too.
119. But, as the judge recognised, the court’s assessment of obviousness ... has to be made on an historical basis as at the priority date without taking into account its knowledge of the invention. Since expert witnesses are as much in danger of being affected by hindsight as the court itself, the fact that the invention was new and untried is likely to provide strong prima facie evidence that the inventive concept was not obvious to those skilled in the art absent some other explanation for their failure to adopt it".