BREAKING NEWS: judge ejects Virgin chair patent suit

Are you sitting comfortably? Have you fastened your safety belts?  Yes? Then here we go! This morning in Virgin Atlantic Airways Ltd v Delta Airways Inc [2010] EWHC 3094 (Pat) Mr Justice Arnold, sitting in the Patents Court for England and Wales, did something that not many judges do -- he gave summary judgment in favour of a defendant in a patent infringement action.  The defendant was Virgin's airline rival Delta and the subject of the dispute was the famous Contour chair which this Kat, for one, has never curled up on and is, unless he finds a way to grow money, unlikely to do so.

The judgment has only just come out and this Kat implores his fellow-Kats who are more patent-oriented to get their claws into it for some real legal analysis.

Earlier posts on the Contour action here and here
Bloomberg here

Note: since posting the above note, the IPKat has received the following piece from law firm Taylor Wessing. He thought it was a very useful summary:
"This is the latest of a series of legal skirmishes, both in the UK and at the EPO, involving Virgin's Patent for flat-bed seats. The Judge dismissed the action against Delta Airways for infringement of Virgin's flat-bed patent by way of joint tortfeasance with Delta's seat manufacturer, Premium Aircraft Interiors (Contour). He did so on the grounds that there was no primary act of infringement by Contour and so by definition Delta could not be a joint tortfeasor. This is not likely to be the end of the story - it is expected that Virgin will seek permission to appeal the decision. 
In granting summary judgment, by striking out Virgin's claim as having no real prospect of success, the Judge has done something fairly extraordinary in a patent case. Patent cases are hardly ever appropriate for summary judgment, primarily because patent cases are so dependent on expert evidence. However, in this case, because of the prior history of the long-running dispute between Virgin and Contour (the seat manufacturer that helped design and manufacture Virgin's Upper Class Suite (UCS) business class seats), that culminated in the European Patent Office hearing in September this year, the judge felt able to make his decision without requiring further expert evidence. 

However, also, and perhaps even more significantly, the judge seriously called into question (and with substantial reasoning) the doctrine of infringement of a patent by supplying a "kit of parts" as a separate head of infringement under section 60(1)(a) of the Patents Act 1977. That doctrine, under the current law, had arisen in two previous English cases, Rotocrop International Ltd v Genbourne Ltd [1982] FSR 241 and Lacroix Duarib SA v Kwikform (UK) Ltd [1998] FSR 493. In his analysis (probably the most detailed analysis of the point anywhere since the Community Patent Convention (CPC) of 1975 had the effect of harmonising the national patent laws of a number of European states), he also considered the law on this point as it applied in other CPC states and concluded that the supply by a UK defendant of an incomplete "kit of parts" to a customer outside the UK could not infringe a UK patent but also that the supply of a complete "kit of parts" to such a customer should also not infringe either under section 60(1)(a) or section 60(2) of the Patents Act 1977".
BREAKING NEWS: judge ejects Virgin chair patent suit BREAKING NEWS: judge ejects Virgin chair patent suit Reviewed by Jeremy on Tuesday, November 30, 2010 Rating: 5


  1. The implications of this decision are potentially far reaching. The seat in question was the self-same seat which was the subject of the Virgin v Premium case decided by the Court of Appeal in Virgin's favour a year ago. However, since then Virgin's patent has been given the once over by the Technical Board of Appeal. None of the claims found to have been infringed by Premium were maintained. The patent survived in an amended form, but it was this amended version which was effectively litigated in front of Arnold J. If Delta are not infringing, neither are Premium, which re-opens the whole issue of the shabby Unilin decision which, on its face, entitles patentees to receive huge damages from alleged infringers, even after the patent is either revoked or substantially amended by the EPO. "Business must have certainty" said Jacob LJ, but there are more developments to come, and the Unilin decision may be reviewed by the Supreme Court as a result of this decision..... watch this space!

  2. Shabby? Here's what Jacob J said: "The rule in Unilin effectively stretches back to the Poulton v Adjustable Cover [1908] 2 Ch 430. Moreover, if the position were otherwise the Patents Court would be partially emasculated. No truly final order could be made until the very often long drawn-out EPO opposition procedure was over. Business could not know in a reasonable time where it stood. Things would be provisional for far too long. Wary or perhaps well-advised inventors might indeed eschew the European Patent Office altogether and apply for a national patent instead -- there is no opposition procedure here -- for fear that an EPO opposition would make their patents only incompletely or contingently enforceable for the whole period of the opposition."

    I say: Can the Court of Appeal make a final decision or must it be subservient to the whims of a Board of three uber-apparatchiks unbound by precedent or it seems common sense?


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