Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd

Purposive patent construction assumes that the skilled reader knows relevant patent-law practice. Reference numerals cannot limit a claim. A two-part claim which expressly acknowledges particular prior art will normally be read as treating its pre-characterising wording as describing that old art.

A divisional application may claim a distinct invention disclosed in its parent application. Added matter arises only if relevant subject matter is not clearly and unambiguously disclosed. On that approach, a claim to an aircraft-seat space-packing system was neither confined to flip-over seats nor anticipated or made obvious by the cited prior art. The patent was valid and infringed.

Virgin appealed from the decision of Lewison J in the Patents Court, [2009] EWHC 26 (Pat), insofar as he held that Premium Aircraft Interiors UK Ltd’s aircraft seating system did not infringe Virgin’s patent. Premium advanced a contingent cross-appeal for revocation if the claim covered its system.

The appeal concerned the construction of claim 1, added matter in a divisional patent, novelty over the British Airways application and Airbus application, and obviousness. The central issue was whether the claim protected the use of herringbone-layout space behind a seat for a flat bed, without requiring a flip-over seat mechanism.

1. Appeal allowed; contingent cross-appeal dismissed. The court held that the patent was valid and that Premium’s seating system infringed claim 1.

2. Applying purposive construction under European Patent Convention article 69, the skilled reader was assumed to know relevant patent drafting practices. Reference numerals could help the reader locate features in an embodiment, but could not affect claim construction. The reader would also understand that a two-part claim ordinarily identified acknowledged prior art in its pre-characterising portion, particularly where the specification made that acknowledgement express.

3. Claim 1 was not confined to flip-over seat/beds. Its inventive concept was the recovery of herringbone-layout “lost space” by extending the bed rearwards into it. That concept was unrelated to whether the seat and bed used different passenger-bearing surfaces. The claim therefore covered Premium’s non-flip-over bed system.

4. The relevant rearward space was the triangular space created by the inward-facing herringbone arrangement, rather than any space behind a seat within its own pod. The British Airways application did not disclose that feature and did not anticipate the claim. Properly construed, the claim also required a fixed seat axis and did not cover Airbus’s rotatable seat/bed arrangement.

5. There was no added matter contrary to article 123(2). The parent application separately and clearly disclosed the flip-over and space-packing concepts, and contained an independent space-packing claim materially identical to claim 1. The later patent taught no relevant subject matter absent from the parent.

6. Applying the Pozzoli v BDMO SA approach, the space-packing concept was not obvious over common general knowledge, the British Airways application, or Airbus. Its novelty and the industry’s failure to adopt it provided strong historical evidence against hindsight. Airbus taught a swivel-seat arrangement and removal of the ottoman, not the fixed-seat system claimed.

Consequential orders, including Premium’s proposed stay pending EPO proceedings, were left for written submissions.

1. Court of Appeal (Civil Division). Allowed Virgin’s appeal, held the patent valid and infringed, and rejected Premium’s contingent revocation case.

2. Patents Court, Chancery Division. Lewison J held that Premium did not infringe, but held that the patent would have been invalid for added matter if it covered Premium’s system. He rejected the other validity attacks: [2009] EWHC 26 (Pat).