Virgin Atlantic Airways Ltd v Delta Airways Inc

Summary judgment may be appropriate in a patent case where the court has the necessary evidence to construe the patent and no further factual investigation is realistically required. A product claim is construed as a whole, purposively and in its specification context. Wording requiring seat units to be arranged ordinarily requires actual arrangement, not mere capability.

Where a claimed product consists of several parts, dealings in a complete kit for assembly abroad may remain arguable under Patents Act 1977 section 60(1)(a). An incomplete kit, where the customer supplies the missing parts and assembly occurs abroad, does not infringe section 60(1)(a). Such an interpretation would circumvent the territorial limitation in section 60(2).

Virgin claimed that Delta was jointly liable for patent infringement by Contour, which manufactured and supplied Solar Eclipse aircraft seat units. The claim concerned amended claim 1 of European Patent No 1 495 908, directed to a passenger seating system comprising seat units arranged in an inward-facing herringbone configuration.

The patent had previously been considered in proceedings against Contour, but the amended claim was not then in issue. The seat units were manufactured and supplied in the United Kingdom, while assembly and arrangement into seating systems occurred on aircraft outside the United Kingdom. Delta applied for summary judgment, contending that the amended claim required an assembled seating system on an aircraft and that neither direct nor indirect infringement was established.

1. Summary judgment. Although summary judgment is unusual in patent cases, the court had the relevant findings of fact, expert material and common general knowledge. It could therefore construe the amended claim without a trial.
2. Effect of the earlier proceedings. Delta’s acceptance of findings in the Contour proceedings did not prevent it disputing infringement of the amended claim. The earlier Court of Appeal decision concerned claim 1 as granted and had not construed the amended claim.
3. Construction. Claim 1 was construed as a whole and in the context of the specification. The wording of integers [6], [7], [8], [12], [13] and [15], especially the reference to the space defined by the inward-facing herringbone arrangement, required the seat units to be actually assembled and arranged on an aircraft. The claim did not extend to units merely capable of that arrangement. This reading was consistent with the invention’s technical purpose, fair protection and reasonable certainty for third parties.
4. Indirect infringement. Under Patents Act 1977 section 60(2), there is a double territorial requirement: supply of means relating to an essential element must occur in the United Kingdom, and the means must be intended to put the invention into effect in the United Kingdom. The claimed invention was the seating system, not merely the seat units. Section 60(2) was therefore unavailable because assembly occurred in the United States.
5. Kits of parts. In the unsettled state of European patent law, dealing in a complete kit for assembly abroad remained arguable under section 60(1)(a). But an incomplete kit, where the customer supplied the missing parts and assembly occurred abroad, did not amount to dealing in the claimed product. Extending section 60(1)(a) to that case would circumvent section 60(2)’s territorial limitation.
6. Virgin had no real prospect of establishing infringement. Summary judgment was granted for Delta. The fallback declaration would also have been granted if required.

The judgment describes earlier proceedings concerning the same patent, including [2009] EWHC 26 (Pat) and the Court of Appeal’s decisions at [2009] EWCA Civ 1062 and [2009] EWCA Civ 1513 . Those decisions were not appeals in the present action.