UK: Virgin Atlantic looses dispute over flat bed airline seat patent

Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of its flat bed airline seat patent. However, the Technical Board of Appeal (“TBA”) of the European Patent Office (“EPO”) found that in the form in which the patent was originally granted the relevant claims were invalid because they had been anticipated by prior art and therefore has retrospectively amended the patent so as to remove with effect from the date of grant all the claims said to have been infringed.Virgin argued that it was nevertheless entitled to recover damages for infringement because before the TBA had issued its decision, the English courts had held the patent to be valid and specifically rejected the objection based on prior art. A similar argument had succeeded before the Court of Appeal in very similar circumstances in two previous cases.However, the Supreme Court held that although the decision to revoke the patent was made in proceedings involving different parties, the revocation of the patent deprived the patentee of the rights which the patent had bestowed on him as against the world and did so retrospectively. The effect of the revocation therefore was that everyone was entitled to conduct their affairs as if the patent had never existed. The Court of Appeal had failed to consider the nature of a patent and the effect of its revocation. Accordingly, the Supreme Court overruled the Court of Appeal’s decisions.Case Details: Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) [2013] UKSC 46Full text of judgement avialbale here>>.

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