Eurocopter filed a motion in writing to ask the Court of Appeal to reconsider paragraphs 157 and 158 of its reasons in anearlier appeal where claim 16 was found to be invalid for a lack of demonstrated utility or sound prediction. Claim 16 refers to an integrated front cross piece which is offset backwards, as opposed to claim 15 which has the landing gear offset forwards. Claim 15 was ultimately found valid and infringed, and Eurocopter asked the Court of Appeal to recognize that the specification of the patent provides that the embodiment of claim 16 has the advantage of improving ground resonance behaviour in helicopters.
The motion was dismissed for three reasons. First, the Court of Appeal felt that this argument was raised on the appeal and could not be raised again. Second, the Court of Appeal held that no line of reasoning was set out in the patent to support a sound prediction. Third, Bell Helicopter had brought evidence that the inventors had not demonstrated or soundly predicted the promised utility of claim 16, and Eurocopter failed to rebut that evidence through evidence of its own.