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Friday, 10 August 2012

The Not-So Friendly Skies: Virgin Atlantic v Contour et al (Part I)

Mr Justice Floyd  - the latest of the 
High Court judges to see the
"flat-bed" wars
Never one of the lucky travellers to enjoy a flatbed experience on her airplane journeys, the AmeriKat was eagerly awaiting Mr. Justice Floyd's decision in the ongoing flat-bed seat saga brought by Virgin Atlantic against airplane seat manufacturer, Contour Aerospace Limited, and its customers - Jet Airways (India), Delta Air Lines and Air Canada. His decision, which runs into a conservative 57 pages and 256 paragraphs (quite a feat given the circumstances) was handed down on 27 July 2012. The procedural history is complex, but the AmeriKat does her best to summarize the key points from the decision in a two-part post.

The Patents

Virgin alleged infringement of three patents - 1,495,908, 2,272,711 and 2,289,734 - by Contour's Solar Eclipse seat. The main star of the show was the 908 patent. The 908 patent related to a seating system for passenger aircraft in which the seats, which convert into flat beds, are arranged in an "inward facing herringbone" configuration. The patent describes how the seats can be arranged into a "space-saving" configuration and the back of the seats can be used as part of lie-flat bed ("the flip-over mechanism"). The 908 patent had a bit of a sordid history having faced opposition proceedings before the European Patent Office (EPO) resulting in an amendment so as to restrict its scope from that of the original grant. It was also subject to a case before the IPO regarding its UK designation.

In respect of the two divisional patents:  the 711 patent's Claim 1 differed only in that it claimed a seat unit, not a seating system, for an aircraft whereas the 734's main difference was, although it was a claim for a seating system (Claim 1) and a seat unit (Claim 10), it did not have a passenger support system.  Virgin's claims on the Divisionals were made against Contour alone (Virgin do not believe the airlines will buy more Solar Eclipse seats from Contour), made quia timet, and only for injunctive relief because the Divisionals were published after the sales of the Solar Eclipse were made.

Procedural History

Who knew that lying flat could
be so inventive.... (Figure 1A)
Before the Opposition was completed, Virgin sued Contour for infringement of the 908 patent for the sale and supply of their Solar Eclipse Seat. Before that action reached trial, Virgin also sued three of Contour's customers - Delta, Air Canada and Jet - as joint tortfeasors with Contour. Those three actions were stayed by formal or informal agreements pending the original Contour action.

In the Contour action at first instance, in January 2009, Mr Justice Lewison, as he then was, held that the unamended 908 patent was valid over the cited prior art but that the Solar Eclipse seat had not infringed the patent because the claims were limited to the flip-over mechanism - a feature not used by the Solar Eclipse seat. In October 2009, the Court of Appeal upheld Lewison's judgment on validity but reversed the decision on infringement holding that the claims were not limited to the flip-over seats but also concerned the space-saving invention - also novel and inventive over the prior art.

The following year, the Technical Board of Appeal (TBA) of the EPO decided that that the 908 patent could be maintained with amended claims which (1) introduced a requirement for a triangular support element and (2) the deletion of claims directed to individual seats for aircraft seating systems leaving the 908 patent to address seating systems only. With the introduction of these amendments the TBA therefore came to a different view on the construction of the unamended claim than that taken by the Court of Appeal. The question live before Floyd J was whether the amendments narrowed the claims so as to affect he Court of Appeal's finding of infringement by the Solar Eclipse seat.

Following the TBA's decision Delta successfully applied for summary judgment before Arnold J in respect of its action claiming that the deletion of the claims to limit the 908 patent to aircraft seating systems alone meant there could be no infringement. Delta argued that this required the seating system to be installed on an aircraft which happened outside of the UK. The Court of Appeal reversed the decision in February 2011 holding that the claims did not require a seating system to be on an aircraft, merely to be suitable for an aircraft.

Finally, Premium Aircraft Interiors - a company in the Contour Group - appealed a decision from the UK Intellectual Property Office (IPO) following the dismissal in August 2011 of their application to remove the UK as a designation of the 908 patent under Rule 50 of the Patents Rules 2007 (subject of a separate post).

The Prior Art


The 1996 BA First Seat
Before 1996, the typical aircrat seating in first and business class were side-by-side seats, facing forward with a reclining backrest into the space to the rear of the seat (i.e. how the rest of us mortals still live in economy class). The seat would not, however, form a flat bed. In 1996, British Airways introduced a first class flat bed. Those seats faced towards the window and were arranged in a herringbone arrangement. Soon after, United Airlines and American Airlines also introduced a lie-flat seat in a herringbone arrangement. Others, such as Swiss Air, Singapore Air and Virgin Atlantic did not adopt the herringbone arrangement. In 2000, BA again introduced a lie-flat bed for business class.

The Skilled Addressee

In the Contour action, Lewis J identified the skilled addressee as a team of "aircraft and transportation designers comprising designers and engineers with a knowledge of aircraft seats in general, and in particular reclining aircraft seats..."

The Specification

Located behind the seat of the Virgin flat-bed is a triangular space.  Although there was great dispute as to what this triangular space was, the Judge held from the indications of the specification that this was the "passenger-supporting element".  This element is only used when the seat is arranged in the bed configuration, not in seat-mode (it does not form part of the seat) and is also referred to as an "extension surface behind the backrest of the seat".

The Claims

New Rule:  You should only be allowed
to sit the Virgin Flat-Bed seats if you can
 identify all of the parts per the patent specification.
With the skilled addressee and specification out of the way, Floyd J was tasked with determining what Virgin's 908 patent meant.  In doing so he again had to wrestle with what the "passenger-supporting element" was.  Floyd J broke down the integers of Claim 1 of the 908 patent (Claim 2 addressed the seats in the center of the aisle) as follows:

    1. A passenger seating system for an aircraft,
    2. comprising a plurality of seat units,
    3. each seat unit defining only one notional longitudinal seat axis (C-C)
    4. and comprising a supporting structure
    5. adapted for attaching the seat unit to a floor of an aircraft
    6. and means for forming or being configurable for forming a seat
    7. comprising a seat-pan
    8. and a back-rest,
    9. wherein each seat unit further comprises a foot-rest positioned forwardly of the seat,
    10. said seat units being arranged to form a column defining a notional longitudinal column axis (B-B),
    11. in which column said seat-units are arranged side-by-side in longitudinally offset relation at an acute angle to the notional column axis (B-B),
    12. wherein at least some of the seat units are arranged to be disposed adjacent a sidewall of the aircraft
    13. and face inwardly thereby
    14. to define between the rear of each seat and the sidewall a space when the seat unit is configured as a seat,
    15. each seat unit further comprising means for forming or being configurable for forming a substantially flat bed,
    16. 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,
    17. wherein said seat forming means and said bed forming means comprise one or more movable passenger-bearing elements which are selectively configurable to form, in a seat mode, at least part of the seat for a passenger or, in a bed mode, at least part of said flat bed,
    18. and wherein the flat bed in the bed mode is disposed at substantially the same level above an aircraft floor as the seat-pan in the seat mode,
    19. and characterised in that the flat-bed extends into said rearward space behind the seat,
    20. in that said acute angle is in the range 30 to 60°,
    21. and in that a generally triangular passenger support element is disposed in said rearward space substantially coplanarly with said one or more movable elements when said movable elements are configured in the bed mode
    22. and is adapted to form part of said bed.
Claim construction asks what the skilled addressee would have understood the patentee to have meant (Kirin Amgen v TKT) and approaches the question from the perspective of inventor's purpose, aka the "purposive construction" approach.  It is recognized that the purposive construction approach is not the "be all and end all" of claim construction - one is still at the end of the day concerned with the meaning of the language used." (Virgin v Premium Aircraft).  With that in mind, there were four issues of claim construction before the court.

Feature 21:  The Court held that the "passenger support element" is something different from the moveable passenger bearing elements, is part of the seat unit found in the space behind the seat, is preferably fixed, must be coplanar with the moveable elements when in bed mode to allow for a substantially flat bed and must provide direct support to the passenger.

Feature 22:  The Court held that the passenger support element must be adapted to form part of the bed surface, not merely some part of its supporting structure or mechanism.

Feature 1:  Whether or not this claim required assembly of the system on board an aircraft was previously decided by the Court of Appeal in the Delta summary judgment application - it only required that the seating system be suitable for an aircraft.  It did not need to be installed on the aircraft.  In holding this, the Court rejected an added-matter point raised by Contour.

Feature 12:  Feature 12 was subject of an obviousness attack and subject of a latter claim construction (see Part II)

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