Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd

Patent claims are construed purposively through the skilled reader, who is taken to understand relevant drafting conventions and divisional applications. Reference numerals do not affect claim construction. A two-part claim, particularly when linked to acknowledged prior art, reinforces the expectation that its pre-characterising portion describes what the patentee considers old.

Specific embodiments illustrate rather than circumscribe the monopoly. An independently disclosed invention may be claimed separately in a divisional application without adding matter. The strict comparison concerns the disclosed subject matter, rather than every implementation falling within the claim.

Obviousness is assessed technically, at the relevant date and without hindsight. Prolonged failure to adopt a simple solution in a competitive industry may support inventiveness. The prior art must be considered for its actual teaching when assessing proposed modifications.

Virgin Atlantic Airways Ltd owned a patent for an aircraft seating system which extended beds into otherwise unused space behind seats arranged in an inward-facing herringbone. Premium Aircraft Interiors UK Ltd, known as Contour, manufactured a competing seating system. Lewison J held that Contour did not infringe because the patent claim required flip-over seats, which used different surfaces for sitting and sleeping. He also held that a broader claim would be invalid for added matter, while rejecting the remaining validity challenges: [2009] EWHC 26 (Pat).

Virgin appealed the finding of non-infringement. Contour contingently cross-appealed for revocation if the claim covered its system. The issues were whether the claim required flip-over seats, whether the divisional patent added matter beyond its parent application, and whether the claim lacked novelty or inventiveness over British Airways and Airbus patent applications or common general knowledge. The separate design-right dispute was outside the appeal.

1. The appeal was allowed and the contingent cross-appeal dismissed. The patent was valid and infringed. Claim 1 protected the space-packing concept and was not restricted to flip-over seats. On that construction, infringement was accepted, subject to the validity objections.

2. Under article 69 of the European Patent Convention, claims were construed purposively in their descriptive context. The skilled reader was taken to know the relevant drafting conventions and divisional-application practice. The reasoning in Kirin-Amgen v Hoechst Marion Roussel [2005] RPC 9 supported that approach. Reference numerals assisted orientation but played no part in construing the claim; the contrary reasoning in Telsonic AG's Patent [2004] R.P.C. 38 was disapproved.

3. A two-part claim reinforced the expectation that its pre-characterising portion described what the patentee considered old, especially where the description expressly connected it with acknowledged prior art. The patent's space-saving purpose was independent of the flip-over mechanism. Its sole illustrated embodiment supplied no hidden limitation, and the claim language did not require separate sitting and sleeping surfaces. Construction was for the court once equipped with the skilled person's understanding; an expert's opinion on the claim's meaning supplied no legitimate reassurance.

4. The added-matter objection failed. Article 123(2) required a strict comparison: relevant subject matter had to be clearly and unambiguously disclosed in the parent. The principles stated in Bonzel v Intervention [1991] RPC 553 and European Central Bank v Document Systems [2008] EWCA Civ 192 governed that inquiry. The parent separately disclosed flip-over and space-packing inventions and contained an independent space-packing claim materially identical to claim 1. Claim coverage and disclosure were distinct, and separately claiming those inventions introduced no new teaching.

5. Neither cited application anticipated claim 1. The British Airways application extended its bed within the existing seat compartment. The claimed rearward space was instead the otherwise lost space created by the herringbone arrangement. Purposively construed, the claim required a fixed seat axis and excluded the swivelling seats disclosed by Airbus.

6. Applying the Pozzoli approach, obviousness required an historical, technical assessment without hindsight. The evidence of sustained unmet demand and the industry's failure to use the lost space supported inventiveness over common general knowledge and British Airways. Airbus taught a swivel fundamental to its arrangement and the removal of the ottoman. Removing the swivel, or restoring an ottoman for claim 9, was not an obvious modification suggested by that teaching. The judge had ample evidential support, and the appeal supplied no basis for retrying his assessment.

7. Contour's request to stay consequential orders pending the European Patent Office appeal remained for determination. Written submissions on the stay and other matters concerning the order were directed within 14 days.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 1062 , allowed Virgin's appeal and dismissed Contour's contingent validity challenge. The patent was held valid and infringed. Consequential orders, including the requested stay, awaited written submissions.
• High Court, Chancery Division (Patents Court): Lewison J, in [2009] EWHC 26 (Pat) , held that Contour did not infringe because the claim required flip-over seats. He held contingently that a broader claim would be invalid for added matter and rejected the other validity attacks. The design-right issue decided below was not pursued on appeal.