February 2011
Patent infringement actions are invariably complex, relying on expert evidence to construe patent claims, and, because of this, those in the field believed that it was very unlikely that they could get summary judgement in patent infringement cases in the UK. A recent decision of the England and Wales High Court (Patents Court) (Virgin Atlantic Airways Ltd v Delta Airways, Inc.) has changed that perception a little.
Virgin alleged that Delta was infringing European Patent (UK) No. 1495908, directed to its convertible “seat-bed” technology. Delta applied for summary judgment to dismiss Virgin’s claim.
Virgin had previously successfully sued another competitor (Premium Aircraft Interiors UK Ltd, trading as “Contour”) for infringement of the patent. This case claimed that Delta had joint liability for Contour’s infringement.
The Judge decided that the expert evidence from previous “Contour” decisions provided enough evidence for construction of the patent claims. There was no need to repeat the lengthy process of cross examination of expert witnesses. He therefore issued a summary judgement, which found in Delta’s favour.
It can be an act of primary infringement in the UK to prepare a “kit of parts” used to assemble a patented product, outside the UK.
In this case, Mr Justice Arnold found that Delta did not infringe the claim by assembling the “seat-beds” from parts supplied by Contour. He reached this decision because, i. Contour did not supply all the essential parts – Delta provided the missing ones; and, ii. Delta assembled the products outside the UK.
The judge found that Delta did not infringe because it had not dealt in the disassembled product in the UK. The judge accepted that if Delta had bought a complete “kit of parts”, that might have constituted primary infringement.
Virgin may well appeal this summary judgement, not least because the general considerations of infringement by a “kit of parts” required detailed analysis of the law.