Last month's Court of Appeal judgment in Virgin Atlantic Airways v Zodiac Seats (Ltd) and others marked another decision in this long-running patent dispute. The ruling follows the Supreme Court decision in the parallel case Virgin v Zodiac  UKSC 46. Our comments on the parallel case can be found in the August 2013 Intellectual Property briefing.
By way of brief background, Virgin Atlantic brought proceedings against seat manufacturers, Zodiac and others, alleging that Zodiac was infringing three patents that were part of Virgin's lie-flat upper class seating design.
One particular patent (known in the case as 908) was registered and subsequently amended at the EPO but, due to an error, the UK was included in the designated country list, contrary to Virgin's application. Zodiac argued that the patent was not designated in the UK and was therefore invalid (in the UK at least) and that it was not infringed in any event.
The parties ran a number of parallel claims which culminated in a return to the Court of Appeal. Virgin appealed the decision of non-infringement at first instance on Patent 908 and Zodiac appealed the designation point (that it lost at first instance) on rather novel grounds – namely the European Convention on Human Rights (Articles 1 and 6). Zodiac accepted that it could not challenge the designation directly under the Patents Act.
The English Court therefore had to determine whether it had jurisdiction to rule on a European patent designation based on human rights law.
The Court upheld previous case law that the English Court does not have power to rule on the validity of patents granted by the EPO on grounds not specified in the European Patent Convention. However, the Court upheld that Patent 908 had not been infringed by Zodiac. Patent 908 was therefore valid but not infringed.
The case confirms the importance of the EPO for patent holders. Once the EPO has granted a patent, purely procedural challenges to the patent in the English Courts are not going to be successful.