In Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd [2009] EWHC 26 (Pat), unregistered design rights and patent rights subsisting in Virgin Atlantic's flat-bed seat (the UCS) were at issue.

BACKGROUND

The UCS is the commercialisation of a seat disclosed by patent EP (UK) 1,495,908 (the Patent). Previous seats turned into beds by reclining the seat back. However, the UCS had a "flip over" design where a mattress was provided on the rear of the seat, such that the seat was flipped over when converted into bed mode. The UCSs were aligned in an inward facing herringbone arrangement, where each seat faced towards the aisle at a slight angle to the longitudinal axis of the plane. An outward facing herringbone is when the seats face away from the aisle. Both an inward and outward facing herringbone were known. However, until the UCS, the perception in the industry was that passengers would not like an inward facing herringbone.

The UCS was manufactured for Virgin by Contour. Subsequently Contour, together with its external designers Acumen, designed the “Rock” seat for Cathay Pacific, which was later used as a basis for the “Solar Eclipse” seat for Air Canada.

Virgin alleged that these seats, or kits for these seats, infringed the Patent and also that Contour infringed its unregistered design rights in the UCS. Contour denied the allegations.

UNREGISTERED DESIGNS

Virgin alleged that, due to pressure of time, Acumen copied a Layout of Passenger Area (LOPA) provided by Cathay Pacific, which featured a representation of the UCS in an inward facing herringbone, into a LOPA they sent to Cathay Pacific on 13 May 2004 and then copied it into another LOPA sent the following day. According to Virgin, this second LOPA became the foundation for the subsequent seat and hence the seat had been indirectly copied from the UCS.

Lewison J stated that in considering the question of copying, the function of the experts was not to evaluate the factual evidence but to point out to the court the similarities and differences between the design and the alleged infringement and the significance of those similarities and differences. Unfortunately, Virgin's design expert understood his function to be to identify the similarities between the UCS and Solar Eclipse and to disregard any differences.

Lewison J decided that Cathay Pacific's instructions were that they wanted a Virgin-style herringbone concept, but not that they wanted a copy of the UCS. At most, what Acumen took from that was the concept of the inward facing herringbone. Consequently, Lewison J rejected the allegation of copying.

PATENTS

In reviewing the validity arguments raised by Contour, it was accepted that the existence of an outward facing herringbone arrangement was common general knowledge. However, whether an inward facing herringbone was common general knowledge was disputed by the parties. Lewison J decided that, although the idea of an inward facing herringbone might have been known, it was not generally regarded as a good basis for further action or development by the skilled artisan and therefore it was not part of the common general knowledge.

A central issue regarding the patent was the claim construction. It was argued by Virgin that anything in the “pre-characterising part” of the claim must be interpreted as describing the prior art. Accordingly, any integer, entity or “thing” in that part of the claim could not (or should not) be interpreted so as to claim some feature that was not found in the prior art. However, Lewison J decided that the invention was defined by the claim, not by merely a part of the claim and there was no requirement that the characterising part of the claim should alone set out the inventive step of the claimed invention.

Regarding infringement of the patent, the court focused on whether the claim integer “each seat unit… further comprising means forming or being configurable for forming a substantially flat bed” limited Virgin’s claims to simply flipover seats. If the claim was so limited then it was agreed by both parties that there could be no infringement by Contour.

Lewison J determined that the fact that it was the seat unit, rather than the seat, which must “further” comprise the bed, emphasised that the claim was speaking of something different from the seat itself and the claim was limited to flip-over seats.

COMMENT

Lewison J concluded that Virgin Atlantic had failed to prove that Contour copied its designs and consequently the claim for infringement of unregistered design right failed. In addition, Lewison J determined the patent to be valid but not infringed.

Although numerous references to the UCS were made during the various design stages of the Solar Eclipse seat, it was made clear that these references did not prove copying and that it was understandable that a competitor would analyse the UCS when trying the create a better product. Furthermore, claims of a patent must first be viewed as a whole and then construed in context with the patent description and drawings; this assessment cannot be stretched to cover features that were not originally intended to be covered.

Virgin has since announced that it will be appealing the judgment.