In a long-running dispute between Virgin Atlantic Airways (VAA), Zodiac Seats UK Ltd and Air Canada, the Court of Appeal has upheld Mr Justice Floyd's (as he was then) decision that Air Canada's business class, lie-flat Solar Eclipse seats did not infringe Virgin's patent (EP 1 495 908).
Bird & Bird acted for Air Canada, a customer of Zodiac (represented by Wragge & Co LLP) who was sued alongside Jet Airways (India) Ltd (represented by Taylor Wessing LLP) and Delta Air Lines, Inc (represented by Wragge & Co LLP) by VAA in June 2008 as being a joint tortfeasor to Zodiac's alleged infringement.
In an earlier action not involving Air Canada, VAA succeeded at the appellate level in obtaining a finding of infringement of 908 against Zodiac but the patent was amended subsequently by the EPO's Technical Board of Appeal. VAA then pursued infringement under the amended 908 patent against Air Canada and the other customers. Zodiac was also joined to those proceedings.
The Court of Appeal held that Floyd J was right to find that the Solar Eclipse seats did not infringe the amended 908 claims as there was no passenger support element (PSE) on any of VAA's three proposed constructions. Neither the headrest nor rear console (or composite of the two) of the Solar Eclipse seat unit met the requirements of this element. Furthermore, if VAA's construction had been correct, then the temporal requirement in the claim would have for the first time qualified the disposition of the PSE and the co-planarity of the moveable elements. On that basis, the patent would have been invalid for added matter.
The decision is also interesting for the Court of Appeal's decision on the non-designation defence run by the Defendants. This concerned a purported error by the EPO in granting the 908 patent with a GB designation after VAA expressly stated in its 908 application that it did not wish to designate GB. The Court of Appeal held that the fact that the powers of the EPO derived from a surrender of UK sovereign power under the EPC was insufficient to create jurisdiction for the English Court under Article 1 of the European Convention on Human Rights. To allow the English Court to review the EPO's decisions on grounds that were not specified in the EPC would be to undermine fatally the whole system of granting European patents. Furthermore, even if that view was wrong, while Article 6 ECHR provided for a fair and public hearing, it did not in itself create powers of adjudication or other substantive rights which the parties did not enjoy under domestic law. In this case, there was no substantive right of challenge under domestic law pursuant to ss. 72 and 74 of the Patents Act 1977 taken in combination with the common law principle that a domestic court would not adjudicate upon the decisions of a body such as the EPO. Without any substantive rights upon which a relevant "contestation" could take place, Article 6 was not engaged.
The core team acting for Air Canada at first instance and on appeal were London IP partner Morag Macdonald with associates Rachel Fetches, Claire Chapman, Tasmina Goraya, Toby Sears and IP paralegal Paul Sweeden assisting.
The Court of Appeal's decision can be found here