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

Patent claims must be construed purposively by asking what the skilled person would understand the claim language to mean. A claim requiring a passenger-support element in space behind a seat, substantially coplanar with movable bed-forming elements, requires a separate element rather than part of the seat itself. Coplanarity concerns the passenger-bearing surfaces. A European patent granted with a UK designation cannot be challenged domestically on non-designation grounds where the European Patent Convention and Patents Act 1977 provide an exhaustive validity code. Article 6 of the European Convention on Human Rights does not create substantive rights of challenge which domestic law does not recognise.

Virgin sued Jet Airways, Delta Air Lines, Air Canada and Zodiac Seats UK Ltd for infringement of the amended 908 patent and threatened infringement of the 734 patent. The appeals arose from Floyd J’s judgment, [2012] EWHC 2153 (Pat), which held that the 908 patent was valid but not infringed, that the 734 patent was valid and threatened to be infringed, and that the UK designation of the 908 patent could not be challenged in the domestic proceedings.

Virgin appealed on infringement of the 908 patent and added matter. Zodiac appealed on obviousness and added matter concerning the 734 patent. Delta, Air Canada and Zodiac appealed the non-designation issue. The central questions were whether the Solar Eclipse seat infringed the amended 908 claim, whether the 734 patent was invalid, and whether the UK designation of the 908 European patent was open to domestic challenge.

1. 908 patent—construction and infringement. The appeal on infringement was dismissed. Applying the purposive construction approach in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46, the court held that integers 21 and 22 required a generally triangular passenger-support element situated in the rearward space behind the seat and separate from the movable seat elements. The element had to become substantially coplanar with those elements in bed mode. The Solar Eclipse headrest was itself a movable seat element and could not satisfy that requirement, either alone or as part of the support element.
2. The rear console did not satisfy the claim. Substantial coplanarity referred to the upper passenger-bearing surfaces, not the undersides of the components. The console’s upper surface was not substantially coplanar with the relevant bed surfaces. Although there was force in the submission that support need not be direct or triangular in the region of actual force transmission, the relevant supporting part of the console could not sensibly be described as a generally triangular passenger-support element. The headrest and console could not be combined to cure the deficiencies because the claim required a distinct support element.
3. The court also held that, if Virgin’s wider construction were accepted, the amended 908 claim would contain added matter. The application as filed disclosed a support element always disposed in the rearward space. It did not disclose an arrangement in which the element needed to be there only when the movable elements were in bed mode. The appeal on the 908 patent was therefore dismissed.
4. 734 patent. The appeal on validity was dismissed. The judge’s concise reasons rejecting obviousness over the BA First application were adequate and sustainable. The proper obviousness case involved a series of steps, including adopting a greater seat angle, redesigning the seat, removing the housing and adjusting the privacy screen. Removing the housing alone would not produce the claimed space defined in part by the adjacent aircraft sidewall. The common-general-knowledge attack added nothing. The added-matter challenge failed because the application disclosed the space-packing concept independently of the optional, though preferred, passenger-support element.
5. Non-designation. The appeals by Delta, Air Canada and Zodiac were dismissed. The court held that the EPO was an independent international organisation and that section 77 of the Patents Act 1977 merely gave direct domestic effect to its grants. Domestic review of validity on non-designation grounds would undermine the EPC system and breach the United Kingdom’s treaty obligations. Article 6 was not engaged so as to create a substantive right to challenge validity. It guaranteed fair adjudication of recognised rights and did not extend domestic adjudicative powers.
6. Equivalent protection, the appropriate relief, and the Delta undertaking did not arise. All appeals and cross-appeals were dismissed.

• Court of Appeal (Civil Division)—Appeals and cross-appeals dismissed: [2013] EWCA Civ 1713.
• High Court of Justice, Chancery Division (Patents Court)—Floyd J held that the amended 908 patent was valid but not infringed, that the 734 patent was valid and threatened to be infringed, and rejected the non-designation defences: [2012] EWHC 2153 (Pat).