Virgin Atlantic Airways Ltd v Jet Airways (India) Ltd & Ors

A patent claim must be construed purposively, but the court remains concerned with the meaning of the language used. A claim to a passenger seating system for an aircraft may cover a purpose-built system supplied before assembly on the aircraft; it does not necessarily require off-aircraft assembly into a complete system. A free-standing kit-of-parts doctrine should not be developed where ordinary construction resolves the issue.

For a passenger support element to satisfy the relevant claim, it must be distinct from the movable passenger-bearing elements, remain in the rearward space, be substantially coplanar at surface level, and form part of the bed surface. The amended patent was not infringed by the accused seats and was not invalid for obviousness. A patent remains in force notwithstanding amendment, so the related contractual undertaking continued.

Virgin brought infringement claims concerning European patents 908, 711 and 734 against airlines and the aircraft-seat manufacturer Contour. Contour also sought a declaration concerning a modified Solar Eclipse seat. Premium appealed a UK Intellectual Property Office decision concerning the designation of the United Kingdom in patent 908.

The court considered construction, infringement, added matter, obviousness, the continuing effect of an undertaking given by Delta, and whether the English court could review the propriety of the United Kingdom designation in a European patent. The central issues included the meaning of a passenger support element, the scope of a seating system for an aircraft, and the justiciability of acts of the European Patent Office.

1. Construction of patent 908. The passenger support element was a separate element from the movable passenger-bearing elements. It had to be in the rearward space behind the seat, including when the seat was in seat mode. Substantial coplanarity referred to the surfaces of the elements and excluded a support element beneath the movable elements. The element had to provide direct passenger support and form part of the bed surface.
2. Meaning of a seating system for an aircraft. The claims did not require assembly of the system on board an aircraft. A purpose-built complete system, accompanied by detailed instructions but not fully assembled, could fall within the claims. The court declined to consider a free-standing kit-of-parts doctrine because the issue was resolved by purposive construction.
3. Infringement. The original and variant Solar Eclipse seats did not infringe 908 because the headrest was a movable passenger-bearing element and the rear console was not a triangular, substantially coplanar support element. The same reasoning meant that 711 was not infringed. Patent 734, whose claims did not require a passenger support element, would be infringed by the Solar Eclipse seats. The modified Solar Eclipse did not infringe any valid claim.
4. Validity. Subject to deletion of the words “at least some” from the relevant claims, the patents were not invalid for added matter. The obviousness attacks failed. Applying the structured approach in Pozzoli v BDMO [2007] EWCA Civ 588, the differences from BA First were not shown to be obvious, particularly in view of the design, privacy and certification obstacles involved in adopting the proposed arrangement.
5. Delta undertaking. The undertaking remained effective while patent 908 was in force. Amendment did not cause the patent to cease being in force. No implied term discharged the undertaking and the frustration argument was abandoned.
6. Non-designation and Rule 50. The English court could not review the validity of the European Patent Office’s grant or designation procedure. The EPC established a centralised system in which the EPO was the final arbiter of grant. The Rule 50 appeal therefore failed, and the application was also procedurally unsuitable because the requested correction could not be agreed with the proprietor.
7. Disposition. The claims concerning 908 and 711 failed; the claim concerning 734 succeeded against Contour. The declaration concerning the modified Solar Eclipse was granted. The Rule 50 appeal was dismissed.

The judgment describes earlier proceedings in the same litigation, including decisions of Lewison J, the Court of Appeal and Arnold J. Those decisions are part of the same litigation and are not treated as separate cited authorities in this package.