Virgin Atlantic Airways Ltd v Delta Air Lines Inc

A patent claim to a product or system for a stated purpose ordinarily claims an article suitable for that purpose. That strong presumption is displaced only where the claim, read purposively in the light of the specification, compels a requirement of actual use or installation.

A claim to a passenger seating system for an aircraft therefore covered a complete ship-set capable of installation in an aircraft. It did not require the system already to be fitted. Summary judgment is available in patent cases where the court can confidently resolve a sufficiently simple issue. Abstract and fact-sensitive questions about incomplete kits should not ordinarily be decided on a summary application where unnecessary.

Virgin alleged that Delta was jointly liable for infringement of Virgin’s amended patent for an aircraft passenger seating system. The patented claims to individual seat units had been deleted during European Patent Office opposition proceedings. The remaining principal claim was to a passenger seating system for an aircraft.

Contour manufactured bespoke sets of seats and fittings in the United Kingdom for installation in Delta aircraft abroad. On facts accepted for the application, the assembly instructions prescribed a single arrangement which would produce a system within claim 1, and the ship-sets had no commercially realistic use other than installation in their intended aircraft.

Arnold J granted Delta summary judgment and declarations of non-infringement: [2010] EWHC 3094 (Pat). He held that claim 1 required assembly on an aircraft and that the United Kingdom activities concerned only an incomplete kit. Virgin appealed. The central issue was whether the claim covered a ship-set capable of aircraft installation before it was installed.

1. Appeal allowed unanimously. Lord Justice Jacob, with whom Lady Justice Smith and Lord Justice Patten agreed, held that the judge had erred in construing claim 1 as confined to a seating system actually installed on an aircraft. The declaration of non-infringement was discharged and the action was to proceed to trial on Delta’s remaining non-infringement points.

2. The governing inquiry was purposive construction: what the skilled person would understand the patentee to mean by the language of the claim. A claim to a system for an aircraft carried a strong presumption that it meant a system suitable for that use. It should be read as requiring actual installation only if the rest of the claim and the specification compelled that result.

3. The claim as a whole did not compel actual installation. Its references to a supporting structure adapted for attaching a seat to an aircraft floor, to an aircraft floor, and to seats arranged to be disposed beside a sidewall were consistent with a pre-installation ship-set. The remaining language about columns, angles and sidewalls was inconclusive. A purposive construction, rather than over-meticulous verbal analysis, showed that claim 1 covered a realistic complete ship-set capable of installation in an aircraft.

4. That construction did not create unreasonable uncertainty for third parties under the Protocol to Article 69 of the EPC. The claim was confined to a realistic complete system for an aircraft, not an artificial example involving only two seats.

5. The court confirmed that ordinary summary-judgment principles apply to patent disputes. Whether summary disposal is suitable depends on the complexity of the technology and the dispute. The court declined to decide the abstract questions about whether a complete or incomplete kit manufactured and exported from the United Kingdom could infringe. Those questions were unnecessary to the result, unsettled and potentially highly fact-sensitive.

• Court of Appeal (Civil Division): Virgin’s appeal was allowed. The declaration of non-infringement was discharged and the action was to continue to trial.

• High Court, Chancery Division, Patents Court: Arnold J granted Delta summary judgment, declared that Virgin had no realistic prospect of establishing infringement or threatened infringement, and dismissed the infringement action: [2010] EWHC 3094 (Pat).