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

Infringement of 908

The Solar Eclipse headrest
With claim construction out of the way, the Judge took a quick trot through the infringement claims. Virgin's main claim was that the requirement for a triangular passenger support element was met by the headrest of the Solar Eclipse seat. Given the construction of the claim, the Judge held that the headrest did not meet the requirement of the claims in that the headrest was one of the moveable passenger bearing elements and that it was not disposed in the rearward space when the seat is in seat mode.

Virgin's secondary case was that the requirement of the triangular passenger support element was met by the rear console located beneath the headrest (marked yellow in the figure to the right). The judge held that the rear console surface is not substantially coplanar with the passenger support elements and is beneath the moveable passenger bearing elements. Both sides also provided experimental evidence in relation to the extent of contact between the headrest and backrest and the rear console.  Virgin's experiments were withdrawn at the beginning of the trial when it was found that the pressure transducers used for the measurements had not been calibrated properly (or at all). The decision records that they were also not prepared to call the experimenter. This left the Product Description and the defendants' experiments which were conducted on two Air Berlin seats and of which Mr Justice Floyd inspected. He found that there was no triangular support element. The wall of the rear console was the only candidate but that it played no support role.

Variant Solar Eclipse headrest
Given the above findings, the judge also found that the Variant Solar Eclipse headrest would not infringe on the rear console basis because the headrest was one of the moveable passenger bearing elements and was not disposed in the rearward space.

Infringement of 711

As stated, the infringement of the 711 patent was alleged on a quia timet basis because it was published after the Solar Eclipse seats were sold.  The judge held that the issues of infringement were the same as for the 908 and thus there was no infringement of the 711 patent.

Infringement of 734

Like the 711 patent, the infringement of the 734 patent was also alleged on a quia timet basis but because this patent did not possess the all vital "passenger support element", Claims 1 and 10 would be infringed by the sale of the Solar Eclipse seat.

Modified Solar Eclipse

A modified Solar Eclipse was accepted by Virgin not to have infringed any valid claim of the patents in suit.  The judge made a declaration to that effect.

Added Matter

Citing the dicta of Jacob LJ in Vector Corp v Glatt Air Techniques:
"I think the test of added matter is whether a skilled man would, upon looking at the amended specification, learn anything about the invention he could not learn from the unamended specification."
the judge turned his attention to two attacks on the patent for added-subject matter.  Feature 12 was subject of a pretty trivial added-matter attack - the net effect is that the wording "at least some" was considered to be added matter.  The judge held that the words needed to be deleted in the 908 patent and in the similar 734 patent.  The bigger attack was in relation to Feature 21, but the judge held that that there was no added matter.

Obviousness of 908

Having succeeded on the issue of infringement, Contour did not attack the inventiveness of the 908 patent.  Contour recognized that an additional passenger support element, positioned in the rearward space, was an inventive improvement over the common general knowledge or cited prior art.  The judge, therefore, had to assess obviousness on the basis that he was wrong on the construction (i.e. Contour would then infringe the patent).  On that basis, the patent would include seats where there was no separate passenger support element and the requirement for such element may be met by a headrest.

The attack on obviousness in these circumstances was two-fold  - (1) based on the decision of the TBA in Agrevo and (2) a conventional obviousness attack.  Both attacks were rooted in the BA First disclosure.  For that reason, before getting to the obviousness attacks, the judge had to first address the BA First disclosure and construction of the 908 patent.

The BA First disclosure is UK Patent Application No. 2 26 824A published on 6 January 1999.  The application disclosed inward and outward herringbone seat arrangements.  Figure 4 (above) shows the layout of the inward facing seats.  The arrow with the 21 points to the triangular space behind the seat back.

The seat from side view - in seat and bed mode - shows a vertical line in Figure 14 (left) which demonstrates where the rear of the seat back is located in seat mode.  Behind that line is the space within the shell that surrounds the seat.  When in bed mode, half of the headrest is located behind the vertical line.

Features 12 -14 of the 908 patent are relevant to the obviousness questions.  Those features claimed:
"wherein at least some of the seat units are arranged to be disposed adjacent a sidewall of the aircraft and face inwardly thereby to define between the rear of each seat and the sidewall a space when the seat unit is configured as a seat"
An extract from Mr. Meade's Patent Coloring Book
Mr Justice Lewison previously dealt with this issue of construction in the Contour action and found favor with Virgin's construction that that the space referred to in this claim was the space marked by the arrow 21.   In the Court of Appeal, Contour challenged this and argued that the BA Application anticipated the claim of features 12-14 because it showed that when the seat was in seat mode there existed a space defined by the back of the seat and the sidewall.  The arguments in the Court of Appeal therefore centered on what was meant by "space".  Richard Meade QC for Virgin, with the aid of pink and green markers, demonstrated that there were two spaces:  the pink space was the space rear of the actual seat to which the bed extends and green was the space behind that.  Mr. Meade argued that the bed described in the 908 claim must extend into the green.  The BA First bed only extended in the pink and was therefore not novelty destroying.  The Court of Appeal agreed that the BA Application was not novelty destroying (paragraphs 100-104) particularly because the skilled man would have had to acknowledge that the BA application was old so the patentee could not have been intending to claim the old BA First invention by the wording in features 12-14.  The Court of Appeal held that "only if no other possible construction is possible would a skilled man be forced to conclude that the patentee had claimed that which he knew was old" (Beloit Technologies Inc v Valmet Paper [1995] RPC 705 at 720).

Mr. Purvis QC for Contour, before Floyd J in the present action,"boldly" invited the judge to take a different view because the claim had been amended.  In those circumstances, the judge would have to re-evaluate the issue of construction afresh without reliance on the Beloit exception to the general rule that the prior art is irrelevant (it may be relevant if it is cited in the patent).  Floyd J held, however, that although the Beloit principle was part of Lewison J and the Court of Appeal's reasoning "it was not the totality of it" and on that basis the judge held that the Virgin feature was not anticipated by the BA First disclosure.  Acknowledging that this finding implicitly differed from the TBA who held that the unamended 908 was anticipated by BA First, the judge held that because it is not the practice of the Boards of Appeal to give reasons for arriving at their interpretation of claims he was unable to analyze their reasoning in this case.

In relation to the first obviousness attack - the Agrevo attack - Contour cited Jacob LJ's comment in Dr. Reddy's Laboratories v Eli Lilly [2009] EWCA Civ 1362 where the judge, having reviewed the EPO jurisprudence on obviousness including Agrevo T 0939/92 stated:
"The EPO jurisprudence is founded firmly around a fundamental question: has a patentee made a novel non-obvious technical advance and provided sufficient justification for it to be credible?"
The Agrevo case also stated that an arbitrary distinction from the prior art is not a technical advance and that a non-obvious technical advance must apply across the breadth of the claim.  On this basis, Contour claimed that the only distinction between BA First and the 908 patent was the triangular shape of the headrest and that triangular shape is entirely arbitrary.  Floyd J rejected this argument holding that the triangular headrest "allows advantage to be taken of the triangular rearward space" so cannot be said to be arbitrary.

The second obviousness attack was based on accepting the construction of the rearward space adopted by the Court of Appeal.  Citing the dicta of Lord Hoffmann in Conor v Angiotech [2008] UKHL 49 and adopting the structured approach in Pozzoli v BDMO [2007] EWCA Civ 588, Floyd held that it would not have been obvious to the skilled addressee to extend the seat into bed mode into the triangular space between the back of the seat and the cabin wall (the green section) which, in the BA First application, remained unused except for storage.  Contour had argued that this "lost space" would have been obvious to use.  But, as at the priority date, the fact that the invention was new and untried - as it was in this case - provided "strong prima facie evidence that the inventive concept was not obvious to those skilled in the art".  Floyd J stated that
"It is a case where it is legitimate to ask why such a simple step, if obvious, was not taken by anyone else before the priority date."
It followed that the obviousness and added matter attacks on the 711 and 734 patents failed.


After a skip and a jump over a contractual point regarding the meaning of an undertaking by Delta to Virgin, the Court ended on a 14-page meaty non-designation point - a point raised on appeal by Premium.  This discussion warrants a separate post by the AmeriKat, save to say that the point failed.

So, for those keeping score the judge held that the
  • 908 and 711 is not infringed by the Solar Eclipse seating system (in original and variant headrest form)
  • 734 would be infringed by the Solar Eclipse seating system (in original and variant headrest form)
  • The modified Solar Eclipse does not infringe any of the patents
  • None of the patents are invalid for added subject matter or for obviousness

So after 10 days in trial 5 QCs and 4 junior barristers (yes, count them, 9 barristers in total) we are only a step closer to seeing a finale of this ongoing dispute which has seen the parties before the High Court (three times), the Court of Appeal (twice?), the Supreme Court and the EPO (see previous Kat posts here).

Readers may recall that this dispute also has a damages element which is subject to an appeal to the Supreme Court on the Unilin Beheer v Berry Floor point.  That point questions whether there can be a recovery of damages at a time when validity is still in issue in opposition proceedings before the EPO.  Under the current law, even where the patent is subsequently revoked or amended, damages are still  payable. Because the TBA had amended the 908 patent in a way which Contour argued that the Solar Eclipse did not infringe, Contour appealed the Unilin point for a second time to the Supreme Court.    The Supreme Court granted permission in March 2011 and fixed its hearing for April 2013.  Because Floyd held that Contour does not infringe the amended 908 patent the Supreme Court hearing should go ahead as planned.

Merpel finds this saga all very interesting, but her internal costs draftsman is calculating the costs of all these outings: the parties may indeed need a flatbed when the issue of costs comes around.
The Not-So Friendly Skies: Virgin Atlantic v Contour et al (Part II) The Not-So Friendly Skies:  Virgin Atlantic v  Contour et al (Part II) Reviewed by Annsley Merelle Ward on Friday, August 10, 2012 Rating: 5


  1. "It is a case where it is legitimate to ask why such a simple step, if obvious, was not taken by anyone else before the priority date."

    Wait, wait, wait: isn't Floyd conflating novelty and obviousness there?

  2. The Kat's characterization of the added matter point as "pretty trivial" set me thinking.

    It is in the prosecution of mech cases at the EPO where the prosecution amendments most often strike one as "trivial". But they are the ones most likely to be resisted by the ED. The EPO Examiner thinks: This amendment is not helping to distinguish over the art, so why is Applicant making it? Either the amendment makes a difference to the substance, or it doesn't. At this stage, I can't tell. If it doesn't change the substance, why is Applicant so bothered, and if there is no change to the substance, why should I admit it? If it does change the substance, well, in First to File country, Applicant is forbidden from improving its position from the one it had on its original filing date. After all, one has to be fair to the public and to rival Applicants.

    I know that, in "simple" mech cases, the challenge is to figure out what "the invention" is, before ever starting to draft claims. In other words, the litigation starts even before drafting the priority document. I wonder if patent attorneys in chem/bio and EE have quite the same early challenge to separate the wood from the trees.

    Anyway, it's nice to see a simple mechanical case exhibiting a high value. I don't want chem/bio and EE to run away with the idea that they are the only ones doing drafting work that matters.


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