The High Court of England and Wales has held that the main patent (as amended) owned by Virgin Atlantic Airways Limited for flat bed airline seats is valid but not infringed by the seats manufactured by Contour Aerospace Limited and used by the airline defendants.


Virgin alleged infringement of three of its European patents, EP1495908, EP2272711 and EP2289734 (the ‘908 Patent, ‘711 Patent, and ‘734 Patent, respectively), by an aircraft seating system called Solar Eclipse, manufactured by Contour. The sale and supply of this seating system has been the subject of lengthy litigation between the parties. The ‘908 Patent relates to a passenger aircraft seating system in which the seats are capable of being converted into flat beds and are arranged in an inward facing herringbone configuration. The material difference between claim 1 of the ‘711 Patent and claim 1 of the ‘908 Patent is that claim 1 of the ‘711 Patents is a claim to a seat unit, not a seating system for an aircraft. The ‘734 Patent is different in that the claims do not include the passenger support element found in the other two patents.

In total there are five related actions in this proceeding: three infringement actions together with validity attacks, a fourth action in which Contour seeks a declaration of noninfringement from Virgin in respect of a modified seat design, and an appeal relating to the propriety of the United Kingdom being designated in respect of the ‘908 Patent because of alleged irregularities at the European Patent Office (EPO).


Mr Justice Floyd found that the ‘908 and ‘711 Patents are not infringed by the Solar Eclipse seating system. In particular, the requirement for a triangular passenger support element in claim 1 of the ‘908 and ‘711 Patents is not met by the Solar Eclipse design. However, it was held that the ‘734 Patent is infringed by the Solar Eclipse seating system and Solar Eclipse seat units because claims 1 and 10 of the ‘734 Patent lack the passenger support element that enabled Contour to avoid infringement of the ‘908 and ‘711 Patents.

In relation to validity, Floyd J held that, subject to deletion of the words “at least some” in claim 1 of the ‘908 and ‘734 Patents, and on the construction of the claims of the ‘908 Patent, none of the patents are invalid for added matter. Further, it was held that none of the three patents are invalid for obviousness. Virgin overcame Contour’s argument that the only distinction between the prior art and the ‘908 and ‘711 Patents is the arbitrary triangular shape of the headrest. Floyd J held that, in the context of the rest of the claim, the generally triangular headrest allows advantage to be taken of the triangular rearward space.

Virgin did accept that the modified Solar Eclipse does not infringe any of the patents in suit, entitling Contour to a declaration to that effect.

In relation to non-designation action, the Defendants submitted that decisions of the EPO are justiciable in the English courts. Virgin argued that the acceptability of the designation of the United Kingdom is not a matter to be investigated in the English courts as it questions the decision of the EPO. The High Court held that the extent to which the designation of the United Kingdom may be challenged in proceedings before the EPO (asking the appropriate division to review its decision) represents the agreement of the participating EU Member States in that respect. Floyd J also confirmed that the inability to challenge the designation of the United Kingdom in the national court does not amount to a breach of Article 6(1) of the European Convention on Human Rights, which is the right to a fair and public hearing.


This is by no means the end of the story. Contour has previously been granted an appeal to the Supreme Court on the issue of the effect on damages awarded in the first action of the amendment to the patent in the EPO. This gives the Court the opportunity to pronounce on the issue of recovery of damages at a time when validity is still in issue.