Comfy-chair court says skilled reader 'taken to know patent law'

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 [2009] EWHC 26 (Pat), here).
Right: not as comfy as the seat in question, but much more fun for air travellers

This morning the Court of Appeal in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd and Premium Aircraft Interiors UK Ltd [2009] 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.

The IPKat hasn't yet had time to digest for the benefit of legal beagles, but here are a couple of snippets for legal whippets:

* 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

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".
* 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:
"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. ...

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".
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.

A Century of Chairs: the Design Museum's 2006 exhibition here
Chairs by famous architects here
History of the electric chair here
Comfy-chair court says skilled reader 'taken to know patent law' Comfy-chair court says skilled reader 'taken to know patent law' Reviewed by Jeremy on Thursday, October 22, 2009 Rating: 5


  1. Why might the skilled person not ask a WOman ?

  2. As an old senior partner used to say... "the male embraces the female"

  3. 'Man' has two distinct meanings:
    1. Member of the human race.
    2. Human male.
    There is scope for confusion here, as many members of class 2 are also members of class 1. However, it is exclusionary, sexist and contrary to the best Hoffmann principles of interpretation to assume (where the context does not otherwise require) that meaning 2 is intended rather than meaning 1.

  4. An interesting factor in the corresponding European Opposition [now appeal] procedure is the question of whether there is a GB patent at all.

    Apparently in the request for grant GB was specifically excluded and no specific correction to reinstate GB was made.

    During prosecution a separate set of claims for GB was filed but no request for re-instatement of a GB designation. [It is hard to see how a correction would fly when there is an explicit diclaimer "GB is expressly NOT designated in this application" in the request form].

    The EPO, it is alleged by one opponent, made an error in the Decision to Grant and included GB as a designated state.

    The Opposition Division indicated in their decision that there had been a clear administrative mistake but they were not empowered to correct it.

    This is going to be interesting .....

  5. Really handy piece in here at paragraph 17 providing reassurance that reference numerals in the claims do not limit it. Very useful to have that to hand when writing letters to foreign agents

  6. Well, reference numbers in claims is one topic Filemot but I had thought a much juicier one is how the Decision handles the "characterized in that" claim, in the context of obviousness. I had thought that a c-i-t claim is a creature born out of the problem and solution approach to obviousness, with its imperative of a specified single prior art reference as "starting point" and any "admission" about any technical feature that is recited in the claim being "prior art" being confined to that one reference. I had always thought, for example, that an EPO c-i-t is NOT to be construed as if it were a Jepson claim.

    Examiners at the EPO don't require representatives explicitly to identify in the description what D1is, but for the good of their clients reps should take care to do so, no?

    Any thoughts Jeremy, readers?

  7. Is the IPKat going to do a further post expressing his thoughts on this case after quickly reporting the case without analysis? Same for the Gemstar case?

  8. Looks like Virgin have won their EPO appeal, according to the minutes posted on the EPO register today. The patent was maintained in amended form based on a single request, which presumably was crafted to cover Contour - I haven't done the analysis myself.

    Also, Virgin got to keep their GB designation.


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