This week, Mr Justice Arnold delivered his judgment in the latest instalment of the dispute relating to aircraft business class seats. In Virgin Atlantic Airways Limited v Delta Airways Inc  EWHC 3094 (Pat), the judge decided that an incomplete kit of parts could not constitute infringement where the assembly of the kit took place outside the UK.
Delta brought an application for summary judgment to dismiss a claim of patent infringement brought by Virgin Atlantic relating to its patent for business class seat units and the arrangement of those units in aircraft. Virgin Atlantic, having already obtained a positive judgment from the Court of Appeal against the seat manufacturer, Contour, in relation to the same patent, had brought a claim against Delta on the basis that it was jointly liable with Contour for infringement of the patent.
In essence, Delta argued two points in defence of the claim of infringement. First, that the seats manufactured by Contour on its behalf were a kit of parts, and that the kit did not contain all of the parts required by the claimed system of the patent (the missing part was the aircraft sidewall). Secondly that, whilst the incomplete kit was supplied in the UK, it was not fully assembled in the aircraft in the UK but rather in the USA. The judge agreed with Delta that, for these two reasons, Virgin Atlantic had no real prospect of establishing infringement in the UK and therefore granted summary judgment in favour of Delta.
Background – previous proceedings
In 2007, Virgin Atlantic brought proceedings against Contour for infringement of its patent and unregistered design rights relating to the design and arrangement of its Upper Class seating suites (which are arranged on the aircraft in a herringbone pattern). Contour, who manufactured the Upper Class seats for Virgin Atlantic, also manufactured seats for a number of other airlines, including Delta.
At first instance, Virgin Atlantic were unsuccessful with their claim against Contour for infringement. However, the Court of Appeal overturned the High Court's judgment, finding that Virgin Atlantic's patent was infringed by Contour and that the patent was valid. After the UK proceedings against Contour, the patent in suit came before the Opposition Division of the European Patent Office, and subsequently the Technical Board of Appeal in September this year. At that hearing, the relevant claim of the patent was maintained, but in an amended form and hence slightly different from that considered by the UK courts in Virgin Atlantic v Contour.
Claim against Delta
In the present proceedings, Virgin Atlantic claimed that Delta was jointly liable for acts of infringement of the amended patent committed by Contour. Virgin Atlantic alleged that (i) Contour manufactured seat systems and provided those seats to Delta for use in its fleet, (ii) the seat systems fell within the claims of Virgin Atlantic's patent, (iii) Contour assembled the individual seat units into a complete "shipset" in the UK by agreement with Delta, and (iv) to the extent that Contour provided complete but unassembled seat systems to Delta for assembly abroad, it did so with instructions for their assembly.
Delta made an application to the High Court for summary judgment dismissing Virgin Atlantic's claim of infringement.
Summary judgment in patent cases
Arnold J noted the well known rule that summary determination was rarely appropriate in patent cases. This is because construction of the claims of a patent, although being a question of law, is not merely a question of the judge reading the patent with the assistance of legal submissions. It is in fact a more sophisticated process: (i) requiring consideration of the language of the patent to the man skilled in the art with his knowledge of the art, and (ii) recognising that infringement cannot be avoided by what the man skilled in the art would know as an obviously immaterial variant. Both of these points require the judge to have the aid of expert evidence in relation to the mantle of the skilled man, evidence that is not available at a summary judgment hearing.
However, the judge observed that the patent in suit and the same allegedly infringing product had already been the subject of a trial and appeal, where both courts had held there to be no substantial disagreement between Virgin Atlantic and Contour as to the make up of the skilled team or the common general knowledge. Arnold J stated that the court was, therefore, able to adopt the previously agreed mantle of the skilled team, and decided that the case on infringement was suitable for summary determination.
The key question the court had to answer was whether it is an infringement under section 60(1)(a) of the Patents Act 1977 to make, dispose of, offer to dispose of or keep in the UK a complete kit of parts for assembly abroad into an apparatus which falls within the scope of a product claim of a UK patent.
Arnold J considered section 60(1) and the provisions relating to indirect infringement in section 60(2), noting that both sections are to have the same effect as Articles 25 and 26 of the Community Patent Convention. The judge also considered the two previous cases in the UK that dealt with infringement by dealing in a kit of parts: Rotocrop International v Genbourne  FSR 241 and Lacroix Duarib v Kwikform  FSR 493. Arnold J concluded that Rotocrop was of no assistance as it dealt with the law prior to the Patents Act 1977 and there was no extra-territorial dimension in that case. Lacroix was more useful, although Arnold J did not agree with the judge in that case, Mr Justice Laddie, that he was bound by the decision in Rotocrop.
Arnold J held that neither case, therefore, gave authority for the proposition that it is an infringement under section 60(1)(a) to make, dispose of, offer to dispose of or keep in the UK a complete kit if parts for assembly aboard into an apparatus which falls within the scope of the claims of the patent. The judge therefore turned to foreign case law to see if that could assist. Having been directed to authorities from Australia, Canada, France, Germany and the Netherlands, Arnold J concluded that there was no jurisprudence to assist with the question of law in the present case.
The judge therefore commenced his own analysis without the aid of previous authorities. Arnold J first considered the position of a case with no extra-territorial dimension, observing that there would not be any need for a doctrine of infringement by dealing in a kit of parts as a supply or offer to supply of a complete kit for assembly will almost inevitably constitute indirect infringement under section 60(2) (so called contributory infringement by supply of a means relating to an essential element of the invention). Furthermore, an incomplete kit which includes all of the main elements of the claimed product will also infringe this subsection. Finally, if a defendant supplies not only a kit of parts but also instructions for assembly of the kit, then under most systems of law the defendant will be liable as an accessory for infringement when that kit is assembled.
The judge then considered the second scenario of cases with an extra-territorial dimension. Arnold J reviewed the decision of the Court of Appeal in Menashe v William Hill  1 WLR 1462 and stated that, in his judgment, it could not be correct to construe or apply section 60(1)(a) in a manner which was inconsistent with the second territorial limitation in section 60(2) (i.e. the supply of essential means suitable and intended to put the invention into effect in the UK).
Arnold J therefore concluded that a claim to a product consisting of a number of parts could not be infringed pursuant to section 60(1)(a) of the Patents Act 1977 by the manufacture, disposal, offer for disposal or keeping within the UK of an incomplete kit of parts for assembly into the product in circumstances where (i) the defendant's customer obtains from elsewhere, or itself provides, the missing parts for the kit, and (ii) the assembly of the kit is carried out outside the UK. In those circumstances the defendant has not dealt in the claimed product in the UK in even disassembled form.
The judge decided that Virgin Atlantic had no real prospect of establishing infringement of the patent in the manner alleged by Contour. Therefore Delta was not jointly liable for any infringement by Contour and the judge granted summary judgment in Delta's favour.
The High Court's decision is welcome clarification that, for infringement under section 60(1)(a) of the Patents Act 1977 by dealing in a kit of parts, either the kits of parts must contain all of the integers of the claim or, if not, the assembly of the kit to create a product falling within the scope of a patent claim must take place in the UK.
Arnold J's judgment is also of interest for two further reasons. First, having set out the history of the case, the previous UK proceedings and the decisions of the European Patent Office, the judge was critical about the state of affairs by the time the matter came before him, describing them as "highly unsatisfactory". The judge stated that the primary reason was the inability of the European Patent Office to determine opposition proceedings in a timely manner with the consequence that oppositions were not determined until after the conclusion of national infringement proceedings. The judge also made a comment about the ability of patent applicants to file divisional applications voluntarily, not just in response to objections of lack of unity by examiners. All of this inevitably prolongs the uncertainty of what claims will be granted.
Secondly, the judgment again shows the UK court's willingness to consider foreign jurisprudence, both European and Commonwealth, when construing issues of UK law (albeit it was found to be of no assistance in this case).