High Court, Decision of 30 November 2010, Virgin Atlantic Airways Limited v Delta Airways, Inc. [2010] EWHC 3094 (Pat)

This is the latest case in a long-running series of IP disputes relating to the design of Virgin Atlantic's business class "flat bed" seat module. In a very unusual judgment for the UK, the UK High Court (Arnold J) granted summary judgment to the defendant in a patent infringement case. Summary judgment is not usually granted (or even applied for) in patent actions since it is generally accepted that the complexity of patent cases and the typical reliance on expert witness evidence makes it impossible for a judge to come to a summary determination of the strength of either party's case. What was different in this case was the long history of litigation on the same patent asserted by Virgin. This allowed the judge to decide the issues on a summary basis without recourse to further expert evidence.

Virgin Atlantic Airways Limited (Virgin) developed its seat, known as the Upper Class Suite in the early 2000s and sought to protect the design of the seat, seating systems incorporating these seats, and aircraft cabins containing such seating systems with a number of related European patents and unregistered design rights.

Please click here to view Virgin's patent showing the UCS seat system in seat and in bed mode

It asserted its patents against the manufacturer of the Upper Class Suite, Premium Aircraft Interiors (trading as Contour), who had also manufactured seats for several other airlines. Virgin claimed that these seats infringed its rights, and had taken the battle to the UK Courts on several occasions over the alleged infringements and the validity of its patents and oppositions were also brought in the EPO by Contour and other airlines.

The defendant in this latest case, Delta Airways, Inc., had bought seats from Contour. Virgin alleged that Delta was jointly liable for the infringing acts of Contour in making seat systems and/or supplying a "kit of parts" to assemble a seat system from individual seats. For the purposes of application, Delta accepted the findings of the UK courts in the previous action against Contour and that it was jointly liable for any infringing act Contour had committed.

The scorecard in the action against Contour was a mixed bag. The High Court had found no design right infringement and found the patent valid but not infringed. On appeal the Court of Appeal had maintained the validity of the patent but found that Contour's seats did infringe. However, enforcement of the Court of Appeal judgment (and any further appeal) was stayed pending the decision of the Technical Board of Appeal in the opposition. The TBA decision amended the patent to remove the claims to single seats rather than seat systems. It was on these single seat claims that the UK Court of Appeal had found infringement.

As this was an application for summary judgment, the judge had to consider whether Virgin had a real prospect of success in proving that Delta had infringed its patent.

Arnold J construed the amended claims on the basis of the expert evidence provided in the Contour action and held that it was limited to seat systems assembled and arranged on an aircraft. Since Contour had never assembled multiple seat systems on an aircraft in the UK, and it was possible for an arrangement of those seats to fall outside the claims, there was no possibility of infringement by Contour which Delta could be jointly liable for. Delta themselves bought the seats and then assembled them on aircraft outside the jurisdiction.

Arnold J then considered the allegation that Contour had supplied Delta with a complete "kit of parts"[1] suitable for assembling an infringing seat system and therefore infringed the patent under section 60 (1) (a) Patents Act 1977.[2] He held that the supply of individual seat units in the UK for assembly into a seat system when installed in an aircraft which would form the infringing product only once installed was not the supply of a complete kit, since the aircraft and more importantly the layout the seats were installed in was a key element of the amended claim. There was therefore no real prospect of establishing infringement since the missing part - in this case the aircraft - was supplied by the customer and the assembly took place outside the UK. Although there was no territorial requirement in the case law establishing the concept of "kit of parts" infringement under section 60 (1) (a) of the Patents Act, to circumvent the territorial requirement found by analogy in section 60 (2) of the Patents Act would be inappropriate.

Summary judgment was therefore granted in favor of the defendant, Delta. It is very unusual for summary judgment to be granted in a UK patent action and the multi-action context of this particular case which gave rise to a shifting background of judgments must be seen as the catalyst for this decision rather than a change in the general practice of the Patents Court.