Virgin v Delta – Airline Seats to go to Full Trial

This article was included in our Spring/Summer 2011 edition of Inside IP magazine.

In the latest instalment in the ongoing action between Virgin Atlantic Airways Ltd. and Delta Air Lines Inc. [2011] EWCA Civ 162, the Court of Appeal has overturned a summary judgement which was issued by the High Court in November 2010 and ruled that the case should proceed to full trial.

The action in question relates to the alleged infringement by Delta of Virgin’s patent EP (UK) 1 495 908 for flat-bed reclining aircraft seat technology.  In November 2010, the High Court granted Delta’s request for summary judgement and dismissed the infringement action initiated by Virgin, primarily on the basis of a construction of claim 1 as being limited to a seating system when assembled and arranged on an aircraft.  In this case, the installation of the seats on the aircraft by Delta had taken place outside of the UK, and as such was not deemed to constitute an infringing act.

In light of this decision, Virgin appealed against the grant of summary judgement and questioned whether the wording of claim 1, i.e. ‘a passenger seating system for an aircraft’, would require that the seating system was assembled on the aircraft for it to infringe the patent, or merely that the system was suitable for such assembly.

Giving the leading judgement, Lord Justice Jacob of the Court of Appeal adopted a purposive construction of the claim, in line with the approach outlined in Kirin-Amgen Inc v Hoeschst Marion Roussel Ltd, to determine what the skilled person would have understood the patentee to have meant by the phrase ‘passenger seating system for an aircraft’.  Following European Patent

Office guidelines and established case law, Lord Justice Jacob ruled that the skilled person would understand the phrase to mean that the system is merely ‘suitable for’ an aircraft and that claim 1 would arguably encompass the seating system being manufactured and sold by Delta in the UK.

On this interpretation, the Court of Appeal dismissed the summary judgement and ordered that the case should proceed to full trial.

We will continue to monitor this case and will report the outcome of the trial when judgement is handed down.

Becky Davidson 24 May 2011

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