Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd & Anor

Unregistered design right protects copying of an embodied design, not an abstract concept or general design idea. Similarity may support an inference of copying, but the claimant must prove copying on the balance of probabilities. In functional designs, similarities resulting from technical, regulatory and spatial constraints require careful treatment. Experts should address both similarities and differences.

For patent construction, claims are construed purposively and in context, while deliberate limitations remain effective. The patent was construed as requiring a separate substantially flat bed, rather than merely a reclining seat. The patent was therefore valid but not infringed. The alleged designs were independently created, so the design-right claim also failed.

Virgin Atlantic claimed that Premium Aircraft Interiors UK Ltd and its associated company had infringed unregistered design rights in the Upper Class Suite aircraft seating system and had infringed patent EP (UK) 1,495,908 by manufacturing the Rock, Solar Eclipse and Solar Premiere seats.

The design-right allegations concerned wholesale copying and particular features, including ottomans, privacy screens, passenger accommodation units and seat layouts. The patent issues included construction, infringement, anticipation, obviousness, priority and added matter.

The central questions were whether the defendants had copied protected designs and whether the accused seats fell within the properly construed patent claims.

1. Unregistered design right. Design right protects an embodied aspect of the shape or configuration of an article, not an idea such as an inward-facing herringbone arrangement. The claimant may identify a part of an article, but the alleged design must be properly identified and the comparison must be made between the relevant embodied designs.
2. Copying and production of an article exactly or substantially to the copied design are distinct statutory requirements. Similarity may support an inference of copying, especially where there was access, but similarity in functional articles may result from common constraints. The ultimate question remains one of fact, proved by the claimant on the balance of probabilities. Experts must address both similarities and differences.
3. The alleged wholesale copying was not proved. The Cathay Pacific layout conveyed, at most, the general concept of an inward-facing herringbone. The seat positions were explained by an independent sidewall assessment, and the subsequent features had different shapes, dimensions, structures and functions. The individual design claims and the related multiple-PAU claims therefore failed.
4. Patent construction. Claims must be construed purposively and in the context of the specification and drawings. The patent did not cover swivelling seats. The expression requiring the seat unit additionally to comprise means for forming a substantially flat bed required bed-forming means distinct from the seat-forming means. The claim therefore had the “True Bed Meaning” and did not cover a conventional reclining seat.
5. The phrase “a major proportion” did not mean more than 50 per cent. It meant a significant proportion, deliberately avoiding a fixed percentage. The rearward space in the claim was the space created by the inward-facing herringbone arrangement, not space within the seat shell.
6. On that construction the accused reclining seats did not infringe. The patent was valid and the alternative attacks based on anticipation, obviousness, loss of priority and added matter did not arise decisively. The court nevertheless found, in the alternative, that the claimed inventive concept was not obvious over common general knowledge or the cited prior art.

The claim for infringement of unregistered design right failed. The patent was valid but not infringed.