Strand, London, WC2A 2LL
B e f o r e :
| VIRGIN ATLANTIC AIRWAYS LIMITED
|- and -
|(1) PREMIUM AIRCRAFT INTERIORS GROUP LIMITED
(2) PREMIUM AIRCRAFT INTERIORS UK LIMITED
Mr Mark Vanhegan and Miss Kathryn Pickard (instructed by Wragge & Co. LLP) for the Second Defendant.
Hearing dates: 12,13,14,17,18,19,20,21,24,25,27,28 November 2008
Crown Copyright ©
Mr Justice Lewison:
|Aircraft seat design||9|
|The process of designing a new seat: an overview||15|
|Unregistered design right||19|
|The statutory provisions||19|
|What is a design?||24|
|What is an aspect of the shape or configuration of an article?||26|
|Copying: the approach to the evidence||34|
|Did Acumen or Contour copy UCS?||38|
|The expert witnesses on design||47|
|The development of the UCS seat||54|
|Cathay Pacific and the Rock project||75|
|The May LOPAs||97|
|The presentation and afterwards||106|
|Wholesale copying: conclusions||134|
|The individual designs||136|
|The ottoman shape||136|
|The combination of the ottoman and backshield||150|
|The central privacy screen||151|
|Combination of privacy screen and ottoman end section||161|
|The Passenger Accommodation Unit||164|
|The 3 and 4 Passenger Accommodation layouts||178|
|What Contour make||179|
|The patent: principles of construction||182|
|The experts on patent issues||189|
|The skilled addressee||191|
|Common general knowledge||193|
|The 908 patent||201|
|Issues of construction of the patent||218|
|Each seat unit defining a notional longitudinal seat axis C-C||218|
| each seat unit…further comprising means forming or being configurable
for forming a substantially flat bed (47, 48, 67, 74, 76)
| when the seat unit is formed into a bed a major proportion of the bed
is disposed forwardly of the position that was occupied by the seat
| wherein at least some of the seat units are arranged to be disposed
adjacent a sidewall of the aircraft and face inwardly
thereby to define between the rear of each seat and the side wall a space
when the seat unit is configured as a seat
and the flat bed extends into said rearward space behind the seat.
|Claims 4 to 6||244|
|The prior art||255|
|Airbus Patent Application||264|
|Step by step||274|
|The skilled addressee||276|
|The inventive concept||277|
|Common general knowledge||280|
|Differences between the inventive concept and common general knowledge||280|
|Were the differences obvious?||283|
|Differences between the inventive concept and BA First||286|
|Were the differences obvious?||287|
|Differences between the inventive concept and Airbus/Boeing||290|
|Were the differences obvious?||292|
|Differences between the inventive concept and American Airlines||295|
|Were the differences obvious?||298|
|Added matter and loss of priority||300|
|The First Priority Document - GB Patent Application 0119459.6||315|
|The Second Priority Document - GB Patent Application 0202389.3||323|
|The parent patent application||331|
Aircraft seat design
i) The seat must pass a number of dynamic tests including 16g forward tests, a 9g downwards test and the HIC (Head Impact Criteria) test, which mean that the seat as a whole (that is the seat and all its fittings) must pass tests for structural integrity and that the seat as a whole must meet tests for passenger safety;
ii) The fore and aft aisles must be at least 15" wide from ground level up to a height 25" from the floor and from 25" from the floor and above, the aisle must be at least 20" wide. Most designers will incorporate a design tolerance of 0.5" to these requirements;
iii) For taxi, take off and landing ("TTOL"), the crew must have a view of all the passengers when seated. This does not necessarily have to be by direct line of sight but can be by the use of video cameras, or mirrors;
iv) The seat positions must be aligned with the positions of the oxygen masks. In relation to a flat-bed seat, this means that in many cases a passenger must be able to reach the oxygen mask from a fully reclined position;
v) If the seats are installed at an angle greater than 18o to the longitudinal axis of the aircraft additional safety restraints (such as a three point harness like a car seatbelt as opposed to the more normal lap belt) must be provided;
vi) There must be sufficient space for the circulation of air in case of decompression, and space left for decompression ducts;
vii) The height of the seat shell must not exceed 48"; and
viii) The selection and location of materials within the aircraft are very restricted, because they must be fire resistant and easy to clean.
i) the size and shape of the passenger dictates among other things that the seat height must be a minimum of about 16.5" to 17.5" and no more than 19" in height;
ii) the seat must move smoothly through a range of seated and reclined positions to deliver comfort (the kinematic path);
iii) a desire for privacy must be balanced against a feeling of claustrophobia;
iv) the seat must be accessible; and
v) useable features of the seat and surrounding shell must be conveniently located (i.e. the table, light, monitor, handset, etc).
The process of designing a new seat: an overview
i) Stage 1: determine the dimensions of the seat or bed.
ii) Stage 2: The minimum bed dimension is laid out in the aircraft LOPA to fit as many passenger places as possible. There are a number of key dimensions. Some are fixed, such as the width of the aircraft. Others are variable within limits, such as the aisle width. Acumen normally work to an aisle width of 20". One advantage of this is that it gives the designer much greater freedom of design in relation to the privacy screen. The designer will subtract twice the aisle width from the aircraft width (because there are two aisles) and the result is the space left for the beds. If the seating configuration is 1-2-1 (i.e. one passenger in each column adjacent to a sidewall of the aircraft, and two passengers in the middle) then the space left for the seats is divided by four. That dimension is the space within which the seats must be fitted.
iii) Stage 3: The minimum dimension plan shapes are laid out in the most space efficient layout; for example a herringbone layout for a bed seat. This layout uses bed blocks, which is the shape of the bed in its extended position. There is some freedom of choice for the angle of installation of the bed blocks, but since the object of the exercise is to pack as many seats as possible into a tight space, the freedom of choice is limited. A gap is left between each bed to allow for some structure and privacy screens. With rectangular bed blocks this may lead to clashes with the minimum legal aisle width; the aircraft sidewall and clashes between beds down the centre line of the aircraft. The layout is likely to be designed for the most constricted part of the cabin first, which in many cases will be the central columns of seats rather than the outboard seats.
iv) Stage 4: The corners of each bed are removed to avoid clashes with the minimum legal aisle width, the sidewall of the aircraft and each bed positioned down the centre line. Typically this results in rounded corners or asymmetric shapes. At this or the preceding stage the designer must also consider the position of the seat within the bed block. This is likely to be determined by the seat mechanism. The seat should be positioned as close to the sidewall of the aircraft as possible, but must avoid the seat back hitting the sidewall of the aircraft when fully reclined.
v) Stage 5: Seat structure is added in the space between each bed to give some privacy between passengers and house all the seat components such as meal tables, monitors, IFE equipment, etc.
vi) Stage 6: A final aircraft LOPA is prepared showing further refinement to the bed plan shape, privacy screens and seat structure to give a more appealing integrated aesthetic, whilst maintaining minimum bed dimensions. The gaps left at the front and rear of the cabin are filled in with appropriate cabin furniture. The aim is to use all the available space as efficiently as possible because for any given cabin class the airline will wish to have the maximum number of paying passengers accommodated.
Unregistered design right
The statutory provisions
"(1) Design right is a property right which subsists in accordance with this Part in an original design.
(2) In this Part "design" means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.
(3) Design right does not subsist in—
(a) a method or principle of construction,
(b) features of shape or configuration of an article which—
(i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or
(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or
(c) surface decoration.
(4) A design is not "original" for the purposes of this Part if it is commonplace in the design field in question at the time of its creation."
"Reproduction of a design by making articles to the design means copying the design so as to produce articles exactly or substantially to that design…"
"The provisions of this Part apply in relation to a kit, that is, a complete or substantially complete set of components intended to be assembled into an article, as they apply in relation to the assembled article."
"The purpose of copyright and of design right is not to protect the "novelty" of the work against all competition; it is to provide limited protection against unfair misappropriation of the time, skill and effort expended by the author of design on the creation of his work."
What is a design?
"It is important to isolate the design in respect of which protection can be properly claimed, and it is vital to ensure that it falls within the definition of design. The Act defines design as "any aspect of the shape or configuration … of the whole or any part of an article", and the right cannot exist until there is an embodiment of the design in an article or in a design document. This combination of features means that design right is confined to what one can actually see in an article - either the physical article or a drawing."
What is an aspect of the shape or configuration of an article?
"…the proprietor can trim his design right claim to most closely match what he believes the defendant to have taken. The defendant will not know in what the alleged monopoly resides until the letter before action, or, more usually, the service of the statement of claim. This means that a plaintiff's pleading has particular importance. It not only puts forward the claim but is likely to be the only statement of what is asserted to be the design right."
"I do not fully go along with Laddie J.'s suggestion that what the proprietor can do is to "trim his design right claim". It is not really a question of "trimming"—it is just identifying the part of his overall design which he claims has been taken exactly or substantially. And although Laddie J. was right in saying that the defendant will not know in what the alleged (my emphasis) monopoly resides until the letter before action or the claim form, that does not mean the defendant does not know where he stands before then. The man who copies a part of an article, exactly or substantially, will know what he has taken. It is true that it will be for the designer to formulate his claim properly in any proceedings, but the subsistence of his rights does not depend on how he frames his claim."
"Insofar as there are any identifiable difference between the design drawings herein referred to and the Designs as embodied in the earliest commercially available UCS seating system the Claimant relies on the latter."
"Under section 226 there will only be infringement if the design is copied so as to produce articles exactly or substantially to the design. Thus the test for infringement requires the alleged infringing article or articles be compared with the document or article embodying the design. Thereafter the court must decide whether copying took place and, if so, whether the alleged infringing article is made exactly to the design or substantially to that design. Whether or not the alleged infringing article is made substantially to the plaintiff's design must be an objective test to be decided through the eyes of the person to whom the design is directed."
Copying: the approach to the evidence
"The first step in an action for infringement of artistic copyright is to identify those features of the defendant's design which the plaintiff alleges have been copied from the copyright work. The court undertakes a visual comparison of the two designs, noting the similarities and the differences. The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are commonplace, unoriginal, or consist of general ideas. If the plaintiff demonstrates sufficient similarity, not in the works as a whole but in the features which he alleges have been copied, and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying.
Even at this stage, therefore, the inquiry is directed to the similarities rather than the differences. This is not to say that the differences are unimportant. They may indicate an independent source and so rebut any inference of copying. But differences in the overall appearance of the two works due to the presence of features of the defendant's work about which no complaint is made are not material. In the present case the disposition of the flowers and (except in one instance) the colourways of the defendant's design are very different from those of the plaintiff's design. They were not taken from the copyright work, and the plaintiffs make no complaint in respect of them. They make a significant difference to the overall appearance of the design. But this is not material where the complaint is of infringement of copyright and not passing off."
"Substantial similarity of design might well give rise to a suspicion and an allegation of copying in cases where substantial similarity was often not the result of copying but an inevitable consequence of the functional nature of the design. …Copying may be inferred from proof of access to the protected work, coupled with substantial similarity. This may lead to unfounded infringement claims in the case of functional works, which are usually bound to be substantially similar to one another.
…[The court] must not forget that, in the field of designs of functional articles, one design may be very similar to, or even identical with, another design and yet not be a copy: it may be an original and independent shape and configuration coincidentally the same or similar."
Did Acumen or Contour copy UCS?
"Q. …Because your company and Acumen were under extreme time pressure in May 2004, and because of the strong direction from Cathay to look at Virgin and in particular the LOPA, a seat was produced for the June presentation which was firmly and strongly based on the Virgin seat design in order to try and get Cathay's business. That is my suggestion to you and I am inviting you to comment on it?
A. I would disagree, we started from a different fundamental start point, which was to use our existing Eclipse seat that Cathay already had, allow it to go down flat and, you know, the mock-up a very early conception, had very little refinement to it, and the finished product looks [a] little like the mock-up anyway. You know, this is what happens. All it can be judged by is maybe spatial arrangement."
"From our point of view, the Virgin product has a great many compromises, from our standpoint. This is the reason it was not a reference point. For example, if you take the table out, you are trapped in your seat position. The egress and access is very limited. Frankly for Air Canada it is a non-starter, because you cannot run a trolley service for catering because the aisles are too narrow. The drivers for our project for Air Canada, the fundamentals of the drivers if you like, was such that it was actually fallacious to return to Virgin as a reference, because that product did not generate the right aisle width to offer a trolley service."
"We would not be doing our job if we did not understand what is out there and make a critical appraisal of what is out there so that we do not make the same mistakes. That is a natural starting point."
"We are a very successful company. We have delivered more products probably than any other design company that is flying today. Why would we look to copy somebody else? It would just be the ruin of our reputation."
i) Much of the thrust of the attack on Mr McKeever was that he had underplayed or concealed the nature of the use that he made of design data and LOPAs that were supplied to him and that he must have been supplied with more data than he admitted. But Acumen (despite not being party to the action) gave full disclosure of their documents. No criticism has been made of their disclosure. That is not the action of a company with something to hide.
ii) Mr McKeever went further in his witness statement and referred to a LOPA that had not been produced on disclosure which was a fundamental part of Virgin Atlantic's case. A copy of it was in fact found (not in the possession of either Mr McKeever or Acumen) during the course of the trial. Mr McKeever's reference to this document at a time when he believed that it had been lost was not the action of someone with something to hide.
iii) Mr McKeever answered questions directly and without evasion.
iv) The events about which he was giving evidence took place some years ago, and it is not altogether surprising that his detailed recollection of individual points in the overall design process was sometimes inaccurate.
v) Although there were some parts of his evidence that were unconvincing, he was, in my judgment, inaccurately reconstructing what with hindsight he thought must have happened rather than deliberately attempting to mislead the court.
vi) Even if I am wrong about that, the fact that a witness tells lies about one thing does not mean that he tells lies about everything. That is why juries are given the standard Lucas direction.
The expert witnesses on design
"I do not understand what you want to get with the conventional approach. We are creative people. We are designers. And I would say nothing should be conventional in the way we come up with new solutions."
"My belief here is that no copying has taken place because of the number of differences that I can see and because the two seats clearly occupy a very different footprint on the aircraft and are designed for very different aircraft."
"Because the herringbone format I think is a fairly obvious path to follow if you want to deliver a lay flat bed in a relatively efficient manner on an aircraft where you are not overlapping one part of the body of one person with the part of the body of another. In looking at the screen that divides one person from another, you can identify a considerable number of differences between one and the other that would prevent me from considering them to have been copied."
"…looking at the articles themselves, there are substantial differences in viewing the articles themselves that one cannot directly interpret through these drawings. For example, the Virgin privacy screen has a three-dimensional curve to it, so when you section it in the vertical manner it is a very different creature from that of the Solar Eclipse."
The development of the UCS seat
Cathay Pacific and the Rock project
"The seat Supplier shall rethink the conventional approach of using the seat as a sleeping bed as the required foam profile and hardness are different for seating and sleeping position."
"8. The concept assumes the use of an airbag seatbelt as per Virgin
10. Obviously, to achieve an equal or superior offering to either BA or Virgin [Cathay Pacific] will need to face up to a significant reduction in [passenger] density."
"We would like to [enquire] if [Contour] can make scale-down version of the proposed seat (i.e. make all dimensions smaller) and adopt the [Virgin] fishbone layout concept to roll out a LOPA which can accommodate our required min. seat count of 43 [passengers] in J-class. Also can you [please] clarify if there is any patent issue regarding the fishbone layout concept."
"[Cathay Pacific] require a full flat seat for their new fleet of B 747-400 aircraft using either the existing Eclipse mechanism (doubles & Triples) or a single pod type seat configured in a similar way to Malcolm. … [Cathay Pacific] presented Contour with various lopa options they had been considering in-house, including the Eclipse at 73" forward and rear facing and a Herring boned "Blue Sky" option based on the Malcolm lopa."
"Is it possible to achieve [Cathay Pacific's] seat count requirement by
1. Reducing the size of the proposed seat to RFP requirement of 72"
2. Using the VS upper class suite LOPA concept?"
"We have also presented them [i.e. Cathay Pacific] with an Herring boned "Blue Sky" seating option, offering a 6ft 8" bed with associated furniture. The problem they have with our product is this would reduce the minimum pax count from 43 to 34. Again, they have carried out their own lopa work using a familiar configuration (see if you can guess!!).
Could you review these this week and validate using our known seat dimensions?"
"Peter Jones (Contour) and John Higgins (Contour) have briefed Acumen on their updated understanding of the requirements with a copy of a "Virgin Style" LOPA prepared by the [Cathay Pacific] team in-house. To achieve the Business Class [passenger] numbers dictated by the [Cathay Pacific] Business Plan, as we understand it, it suggests that we should develop a more compressed Concept based more around a variant of the "Virgin LOPA" if we are to successfully comply with their latest preferences."
"Originally Acumen had been given the understanding that a "Virgin Style" inboard facing concept would not be acceptable to [Cathay Pacific] as they prefer to serve meals from the side, and hence this conceptual avenue was rejected in our earlier thinking.
Following a conversation with Peter Jones today endorsed by the LOPA given to him, it would now seem logical to rework our concept in line with this approach."
"I have just been speaking to Ian Dryburgh of Acumen and I understand that they are looking at the "guess who" design.
We are helping with info where possible"
"As you can see, like Virgin you can have a 78" flat surface if you have a pointed head."
"I spoke with Bruce Gentry regarding our current approach to the Business Class Concept, which he agreed should work according to his quick and dirty earlier investigations. He would prefer not to offer a saw-tooth lay flat mechanism (as per Virgin) as it adds undue complexity with seemingly little benefit. Perhaps we could offer it at a later stage if required."
The May LOPAs
i) The angle of installation of the outboard seats differed by 2o to 5o, and the angle of installation of the central inboard seats differed by a greater amount (perhaps as much as 7o);
ii) The Virgin Atlantic LOPA included a bar in the central section of the cabin, whereas the Cathay Pacific LOPA did not, with the result that there was more space for seats in that area;
iii) Although both LOPAs included curved privacy screens, the shape of the curves differed;
iv) The seat length was different on the two LOPAs; and on the Cathay Pacific LOPA the outboard seats were positioned far closer to the sidewall of the aircraft.
i) Whereas each of the outer columns of the Cathay Pacific LOPA contained six seats, the outer columns of the 13 May LOPA each contained five seats;
ii) Whereas each of the central columns of the Cathay Pacific LOPA each contained four seats, the central columns of the 13 May LOPA each contained five seats;
iii) There is a visible difference in the aisle width between the two LOPAs. The 13 May LOPA has an aisle width at floor level which may be 3 or 4 inches wider than the Cathay Pacific LOPA (and some 5" wider than the aisle width at floor level on a Virgin Atlantic LOPA);
iv) Although the angle of installation of the seats in the outer columns is close to the angle of installation in the Cathay Pacific LOPA, there is a very visible difference between the angles of installation of the seats in the two centre columns. Those in the 13 May LOPA are at a less acute angle to the longitudinal axis of the aircraft. Mr McKeever's evidence was that it was desirable, for manufacturing purposes, to have the same angle of installation for the outboard and inboard seats, and that the angle of installation of the outboard seats determined by the sidewall assessment would have been carried through to the inboard seats;
v) The pitch between the seats is different;
vi) The shape of the seat (and in particular the back rest) is different;
vii) The ottoman on the 13 May LOPA is larger than that shown on the Cathay Pacific LOPA, and, although it is a similar shape, it is more pointed;
viii) The seat back of the outer seats on the Cathay Pacific LOPA is closer to the sidewall of the aircraft than on the 13 May LOPA. This last feature, in particular, supports Mr McKeever's evidence about the sidewall assessment;
ix) Although the privacy screens in both LOPAs are curved, the curve is of a different size and shape.
i) The seats were now shown both in TTOL mode and also in bed mode;
ii) The seat positions (which encompass both the angle of installation and the position of the seat within the bed block) were the same, because of the sidewall assessment;
iii) The privacy screen now wraps round the back of the ottoman, whereas on the 13 May LOPA it stopped at the front edge of the seat pan. It is also a very different shape. Whereas the privacy screen on the 13 May LOPA was a relatively simple arc, that on the 14 May LOPA is a much more complex shape;
iv) The 14 May LOPA also included cocktail tables attached to the privacy screen;
v) The ottoman in the 14 May LOPA is smaller. This was the result of the sidewall assessment. Because Acumen were using a standard seat mechanism, which had fixed lengths for the back rest, seat pan and extendable foot rest, the size of the ottoman had to be reduced. In addition the side of the ottoman further from the aisle begins with a straight line, whereas the ottoman on the 13 May LOPA did not have that feature;
vi) In addition the shape of the end of the ottoman on the 14 May LOPA had become more rounded, and the overall footprint of the front of the PAU incorporated that change within the sweeping curve accommodating the cocktail table;
vii) The fact that Acumen were using a standard seat mechanism also meant that the length of the seat back was fixed. It was not tall enough to accommodate a tall passenger when the seat was reclined into bed mode. There were two options for dealing with this. One was to incorporate a padded area behind the seat into the bed when the seat back was reclined. The other was to create a pointed headrest to fit into that space. Mr McKeever suggested that both options were shown on the 14 May LOPA. But to my eye only the first of these options was shown, although in fact the second option was the one that was subsequently chosen.
The presentation and afterwards
|At which design stage was [Contour] involved for the current VS upper class suite design?
To what extent was [Contour] involved in the design of VS's upper class suite?
What percentage of work originated from [Contour]?
Who has ownership of design right? Can [Contour] propose a similar solution for other airline customers?
Are there patent or design right issues that could limit/restrict your current proposals?
|From 1st mock-up stage
Design engineering and functionality
Virgin have design rights/protection on the flip-over seat feature. This is not compromised by our proposed design.
None that we are aware of
i) An inward facing herringbone at an angle of installation greater than 18o, although the precise angle between the seat axis and the fuselage axis had not been finally determined;
ii) A seat whose seat pan travelled forwards to convert into a bed, co-operating with an ottoman and a foot rest; and a back rest that reclined;
iii) A privacy screen forward of the seat and wrapped round the ottoman;
iv) The privacy screen and ottoman in plan view was generally J-shaped; and the privacy screen had cocktail tables attached where the privacy screen abutted an adjoining forward seat;
v) The screen housed the IFE, seat controls and literature pocket;
vi) There was stowage both under the ottoman and also behind it under the cocktail table.
"Would it be possible to forward me the PDF's with the Virgin product that you received from Henry Friess at Air Canada. Ben Bettell only forwarded one to me and I believe that there were 3 in total."
"From our various discussions, meetings and e-mail transmissions Contour understand that Air Canada are embarking on a new cabin upgrade of their Executive Class seating which will encompass a new seating product that will translate to a bed without the need of a passenger having to get up from his seat."
i) The privacy screen wrapped around the footstool which compromised the passenger's perception of space;
ii) The privacy screen was bulky which made access difficult and cramped;
iii) The length, height and shape of the privacy screen gave a "stall-like" quality.
"been convinced by FB that the foot end of the screen should be more virginesque."
"Please find attached two PDF's. [One] shows initial radical screen reduction studies (including comments on why we don't feel like they are successful) and the other shows some preliminary styling concepts based around our recommended approach for reducing the visual mass of the screen as it wraps around the ottoman.
We feel that by reducing the screen any more than shown in our preliminary styling PDF or moving towards a separate ottoman (a la virgin and suggested by Future Brand) then we will lose some of the features that make this product superior to the Virgin product. For example we will lose the improved foot protection around the ottoman area and more importantly the cocktail area and lower shelf. It might also have an impact on the under ottoman stowage size/volume."
"From Contours side the main thing to emphasise is the patent infringement issues. Air Canada cannot have a virginesque seat because of some areas which need to differ."
"There are no floor vents. The Dado venting is the only area to be considered. ACA to request from Boeing the baseline venting requirements. At present it is envisaged that Virgin style grilles will be fitted to the outboard seats."
i) For the Boeing 767-300, the Acumen LOPA showed the suites at an angle of 36o pitched at 43.66". Mr Allen reduced the pitch to 43.5", in order to ease standard manufacture of the plinth. He also made adjustments to the suite positions to obtain sufficient clearance for the monuments;
ii) For the Airbus A330-300 the Acumen LOPA showed the outboard suites at an angle of 49.2o pitched at 33.94". Mr Allen modified the angle to 43o and the pitch to 37.5". The adjustment of the angle had the knock-on benefits that the rotation of the seat allowed decompression gaps and also widened the aisle. He also modified the angle of the central suites from 40.6o to 43o.
"I've kept the same outboard profile as used on Virgin so hopefully this will be acceptable this time."
Wholesale copying: conclusions
i) The Cathay Pacific LOPA was not copied into the 13 May LOPA. At most what was taken from it was the general idea of an inward herringbone configuration, although even that was something that Acumen had previously considered briefly before rejecting it;
ii) The principle of an angle of installation greater than 18o had already been established in the blue sky concept presented in April;
iii) The seat position in the 13 May LOPA was carried into the 14 May LOPA as a result of the independent sidewall assessment, but the other details of the design were different;
iv) Mr Dryburgh and Mr Gentry discussed some aspects of the UCS, but when they discussed the seat mechanism, they decided not to use the UCS mechanism;
v) Consideration was given to lowering the height of the privacy screen to match the height of the UCS screen, but that option was rejected;
vi) Consideration was also given to making the screen more "virginesque" but the design team successfully resisted that suggestion;
vii) When a problem arose in relation to the interface between the aircraft sidewall and the plinth, Mr Allen referred back to what he had done in relation to the design of the plinth for UCS, but he changed the plinth and its interface with the aircraft sidewall.
The individual designs
The ottoman shape
i) The shape of the ottoman end section;
ii) The shape of the shield at the rear of the ottoman;
iii) The combination of the shape of the ottoman end section and the shield at the rear of the ottoman.
"You do not create an ottoman shape because you think it is the right shape. The shape is about delivering the space that a passenger's feet can exist within and then part of a seat unit that fits to the aircraft in the most efficient form."
"Ottoman foot protection on screen"
The combination of the ottoman and backshield
The central privacy screen
"They have different heights, different combination of shapes, different sets of requirements. One also, the Virgin screen is also set including the angle of flight into it, so once you rotate it down it would become even more different as well."
Combination of privacy screen and ottoman end section
"I would say that they are similar but they are a long way from being the same and they are fulfilling a similar function dividing two seats out; which means that they will become more similar. Whoever is designing them is looking to minimise their thickness in plan view and the shape to which you have to fit to the cabin, the width of the seat that you need to deliver, the space that a passenger's feet needs to fulfil a proper footstool, is going to lead you down a very common path. If you were to then take these and put them on the aircraft in the positions they actually sit, I think you would see an even increased difference upon these and which you can read by the angle of the end of the screen at the top of the drawing; because that dictates and gives you an idea of how displaced in angle these things really are to each other in reality."
The Passenger Accommodation Unit
i) A reclining seat configured at an angle to the central longitudinal axis of the aircraft which abuts the privacy screen, whereby the curvature of the privacy screen is followed by the curvature of the ottoman and ottoman backshield;
ii) The flat surfaces around the seat unit and between the seat unit and the privacy screens on each side;
iii) A plinth which follows the curvature of the privacy screen to which the seat, a privacy screen and the ottoman are attached;
iv) The position of the reading light on the privacy screen to the immediate left or right of the seating unit;
v) The position of outward facing monitor screens on the privacy screen
vi) The decompression grille behind the seat unit.
The 3 and 4 Passenger Accommodation layouts
What Contour make
The patent: principles of construction
i) The first overarching principle is that contained in Article 69 of the European Patent Convention;
ii) Article 69 says that the extent of protection is determined by the terms of the claims. It goes on to say that the description and drawings shall be used to interpret the claims. In short the claims are to be construed in context.
iii) It follows that the claims are to be construed purposively—the inventor's purpose being ascertained from the description and drawings.
iv) It further follows that the claims must not be construed as if they stood alone—the drawings and description only being used to resolve any ambiguity. Purpose is vital to the construction of claims.
v) When ascertaining the inventor's purpose, it must be remembered that he may have several purposes depending on the level of generality of his invention. Typically, for instance, an inventor may have one, generally more than one, specific embodiment as well as a generalised concept. But there is no presumption that the patentee necessarily intended the widest possible meaning consistent with his purpose be given to the words that he used: purpose and meaning are different.
vi) Thus purpose is not the be-all and end-all. One is still at the end of the day concerned with the meaning of the language used. Hence the other extreme of the Protocol—a mere guideline—is also ruled out by Article 69 itself. It is the terms of the claims which delineate the patentee's territory.
vii) It follows that if the patentee has included what is obviously a deliberate limitation in his claims, it must have a meaning. One cannot disregard obviously intentional elements.
viii) It also follows that where a patentee has used a word or phrase which, acontextually, might have a particular meaning (narrow or wide) it does not necessarily have that meaning in context.
ix) It further follows that there is no general "doctrine of equivalents."
x) On the other hand purposive construction can lead to the conclusion that a technically trivial or minor difference between an element of a claim and the corresponding element of the alleged infringement nonetheless falls within the meaning of the element when read purposively. This is not because there is a doctrine of equivalents: it is because that is the fair way to read the claim in context.
xi) Finally purposive construction leads one to eschew the kind of meticulous verbal analysis which lawyers are too often tempted by their training to indulge.
"Reference numerals … are designed to be, and can be, useful tools to elucidate the inventor's intention. As such they may, depending on the circumstances, help to illustrate that the inventor intended a wide or narrow scope for his claim. On the other hand they cannot be used to import into the claim restrictions which are not foreshadowed by the language of the claim itself."
"… the technical features mentioned in the claim shall preferably, if the intelligibility of the claim can thereby be increased, be followed by reference signs relating to these features and placed between parentheses. These reference signs shall not be construed as limiting the claim."
"The claims shall define the matter for which protection is sought in terms of the technical features of the invention. Wherever appropriate, claims shall contain:
(a) a statement indicating the designation of the subject-matter of the invention and those technical features which are necessary for the definition of the claimed subject-matter but which, in combination, are part of the prior art;
(b) a characterising portion – preceded by the expression "characterised in that" or "characterised by" – stating the technical features which, in combination with the features stated in sub-paragraph (a), it is desired to protect."
"Neither the Article nor the Rule makes any reference to the necessity or desirability that "the characterising portion of the claim should fairly set out the inventive step. The contention by the Appellant seems to be based on the false conception that the inventive step resides in the characterising portion of the claims. It is, however, the subject-matter of the claim as a whole which embodies the invention and the inventive step involved."
The experts on patent issues
The skilled addressee
i) Members skilled in designing aircraft layouts and fitting seats and units into such layouts;
ii) Designers and engineers with at least first degree level and actual experience;
iii) Some members with experience in the regulatory side of aircraft seating layouts and ancillary items such as crash testing and stresses, the transfer of loads from seats to the aircraft structure, and decompression requirements.
Common general knowledge
i) Familiarity with concepts of mechanics, engineering and trigonometry;
ii) A high degree of competence with CAD design software;
iii) Knowledge of and access to airframe manufacturer's specifications and requirements;
iv) Knowledge of dimensions for typical seat units;
v) Knowledge and understanding of aircraft seat design acquired from previous projects or passed on by colleagues' experience or by access to archive materials;
vi) Knowledge of certification authorities and familiarity with certification requirements. This included the knowledge that the regulators allowed the placing of seats at an acute angle to the axis of the fuselage of up to 18o without the need for any additional safety restraint, but that the placing of seats at a greater angle would involve greater safety features (although not necessarily precisely what those additional safety features would be);
vii) Good working knowledge of seat installation criteria issued by Boeing and Airbus.
viii) Knowledge of the main, commercially successful business and first class seats. These would have included, in particular: BA First, BA Yin Yang business class; AA Signature; United First and Virgin J2000;
ix) Knowledge of seating units comprising a reclining seat, a privacy screen, an ottoman or footstool, providing a passenger with a PAU within the aircraft cabin;
x) Knowledge of seating units in which the seat reclined to form a flat bed;
xi) Knowledge of the general objectives in designing business class and first class seats. One of these was the need to make use of all available space within the aircraft cabin, although the relative importance of this varied from class to class;
xii) Knowledge of outward facing herringbone seating arrangements. Whether knowledge of inward facing herringbone seating systems was common general knowledge is in dispute.
"It is certainly difficult to appreciate how the use of something which has in fact never been used in a particular art can ever be held to be common general knowledge in the art."
"Q. … as a matter of fact, as the tool box of knowledge which the typical skilled person would have as at August 2001 he would know or she would know that the concept, the idea of having an inward-facing herringbone for arranging your seats was known to that person. Do you agree?
"MR. JUSTICE LEWISON: Can I just see if I have understood this? I think I have been told, Mr. Moreno, that there are two parallel fixing tracks?
A. That is correct, my Lord.
Q. And one could, I suppose, fix the legs that one sees in Fig 5 to each of the two, one to each of the fixing tracks?
A. That is correct.
Q. But would you not have to fix the privacy screens as well?
Q. What would you fix them to?
A. Well, you would have to fix it to a plinth. You cannot attach anything to the floor of the aircraft.
Q. If you are fixing the privacy screens to a plinth, would you not fix the seat to the same plinth?
A. It could be, but I cannot say from this drawing."
The 908 patent
"the surface is still not ideal because the foam or other padding on the seat is generally sculptured for use as seat whereas for a bed it is desirable to have substantially flat surface."
"so as to define a generally triangular or trapezoidal space to the front or rear of each seating unit (according to whether the seating units face outwards or inwards relative to the cabin). The space is used to accommodate a counter-top to one side of an adjacent seating unit and optionally cupboard or other storage space."
"… has the advantage that by incorporating an additional, secondary seat in the flat sleeping surface together with the back-rest, seating portion and leg-rest of the primary seat, it is possible to form a long seating surface which is able to accommodate comfortably passengers having a height of greater than 6ft (1.83m)."
i) It requires more cabin space than a conventional layout of seats;
ii) The seat cushioning is designed principally for use as a seat and not as a bed (the same disadvantage that it had referred to in paragraph );
iii) The seat itself occupies a very large floor area and is therefore unsuitable for use in business class.
i) To provide improved accommodation in business class incorporating a flat sleeping surface of maximal length and preferably maximal width;
ii) To provide an improved passenger accommodation unit adapted to provide self-contained individual seating and sleeping accommodation, particularly for use in business class;
iii) To provide a passenger accommodation unit which can be converted into a bed of maximal length;
iv) To provide a seating system which optimises use of space within the cabin;
v) To provide a seating system which has a substantially uncrowded appearance.
"According to the present invention, there is provided a passenger seating system for an aircraft, comprising a plurality of seat units, each seat unit defining a notional longitudinal seat axis and comprising a supporting structure adapted for attaching the seat unit to a floor of an aircraft and means forming or being configurable for forming a seat comprising a seat-pan and a back-rest, said seat units being arranged to form a column defining a notional longitudinal column axis, in which column said seat-units are arranged side-by-side in longitudinally off set relation at an acute angle to the notional column axis, thereby defining a space to the rear of each seat, each seat unit further comprising means forming or being configurable for forming a substantially flat bed, so that when the seat unit is formed into a bed a major proportion of the bed is disposed forwardly of the position that was occupied by the seat (Seating system of the type disclosed e.g. in GB-A-2 326 824), and characterised in that the flat-bed extends rearwardly into said space behind the seat. The invention also provides seat unit for such a passenger seating system."
"The present invention thus provides a seating system which is particularly suited for a business-class cabin of a passenger aircraft. The seating system of the present invention provides individual seat units having back-rests and seat-pans and optional foot-rests to allow passengers to rest their legs in an elevated position during flight. Each seat unit is provided with self-contained means for forming substantially flat bed and the use of space within the cabin is optimised by positioning the flat bed to extend rearwardly behind the seat into a space defined by the arrangement of the seat units."
"Each seat unit 40 comprises supporting structure 42 for attaching the seat unit to the floor 30. … Each seat unit 40 has front end 51 rear end 52 and two opposing sides 53, 54."
"As perceived by passenger using the seat unit 40, therefore, the seat unit 40 defines a notional longitudinal seat axis which extends between the front and rear ends 51, 52 of the seat unit 40 and is indicated in FIG 1A by the dashed line C-C."
"In the bed configuration, as shown in the left-hand seat unit of FIG 2 the back-rest is rocked forwardly relative to the seat unit and is partly accommodated within the cuboidal recess 44 such that the rear surface 74 of the back-rest 72 is substantially co-planar with the first and second surfaces 47, 48 and with the cushion 67 of the ottoman 65. The rear surface 74 of the back-rest 72 is also substantially continuous with the second surface 48 and cushion 67 in the bed configuration. The seat movement mechanism includes a moveable infill element 76, as shown in FIG 1A, which is moved from a stowed position to a deployed position when the seat is converted from the seat configuration to the bed configuration. In the bed configuration, the infill element 78 is disposed intermediate and substantially co-planarly and contiguously with the rear surface 74 of the back-rest 72 and said first surface 47. In the bed configuration, the seat unit 40 thus provides an extended bed surface for the passenger, the bed surface being extended rearwardly of the seat by the first surface 47, laterally of the seat by the second surface 48 and forwardly of the seat by the cushion 67 of the ottoman 65."
i) The limits of the seat unit (40). These are the front, consisting of the part of the ottoman closest to the aisle (51); the sides, consisting of the faces of the privacy screens (53 and 54) and the back, consisting of the aircraft sidewall (52);
ii) The seat pan (71) and the seat back (72) are both described as comprising the "seat"; but neither are referred to in the elements of the bed; which consist of the rear surface of the back rest (74), the infill panel (78), the cushion of the ottoman (67) and the surfaces (47 and 48). The rearward extension of the bed is achieved by the first surface (47); the lateral extension of the bed is achieved by surface (48) and the forward extension by the ottoman cushion (67).
"(a) A passenger seating system for an aircraft, comprising a plurality of seat units (40);
(b) each seat unit;
i. defining a [single, fixed] notional longitudinal seat axis (C-C); and
ii. comprising a supporting structure (42) adapted for attaching the seat unit to a floor (30) of an aircraft (12); and
iii. means forming or being configurable for forming a seat comprising;
a) A seat pan (71); and
b) A back-rest (72);
iv. further comprising means forming or being configurable for forming a substantially flat bed (47, 48, 67, 74, 76) [this feature appears later in the claim but refers to the seating unit];
(c) said seat units being arranged to form a column (29) defining a notional longitudinal column axis (B-B), in which column said seat-units are arranged side-by-side in longitudinally offset relation at an acute angle to the notional column axis (B-B);
(d) wherein at least some of the said seat units are arranged to be disposed adjacent a sidewall (26, 28) of the aircraft and face inwardly thereby to define between the rear of each seat and the sidewall a space (36) when the seat is configured as a seat;
(e) so that when the seat unit is formed into a bed a major proportion of the bed is disposed forwardly of the position that was occupied by the seat,
and characterised in that;
(f) the flat-bed extends into said rearward space (36) behind the seat."
Issues of construction of the patent
Each seat unit defining a notional longitudinal seat axis C-C
i) What is said to define the longitudinal axis is not the seat, but the seat unit. Even if the seat within the seat unit swivels, the seat unit itself will define a single longitudinal axis. It is also for that reason that Contour argue that Virgin Atlantic's proposed amendment (namely to insert the words "single fixed" before the word "longitudinal") does not overcome the problem, because the longitudinal axis is still defined by the seat unit, rather than the seat.
ii) The claim under consideration is the claim that applies to the United Kingdom. That claim is restricted to inward facing herringbones. The reason for the limitation is given by the patentee in paragraph  of the specification, namely the publication after the filing date of the patent application of the American Airlines patent. It was a novelty only citation. The American Airlines patent disclosed a swivelling seat in an outward facing herringbone. If Virgin Atlantic had intended the patent in suit not to encompass swivelling seats the swivelling feature of the seat, rather than the inward facing herringbone, would have been the obvious limitation to introduce into the claim applicable to the United Kingdom. Since, however, Virgin Atlantic chose to limit the claim by reference to the inward facing herringbone rather than the swivelling seat, it must be inferred that swivelling seats were intended to be included in the claim.
i) The claim does not expressly mention swivelling seats, and nor does the specification;
ii) When describing the preferred embodiments, the specification describes the flip-over seat; in particular in paragraph  which I have already quoted. It is also the flip-over seat that is illustrated in the figures. All the embodiments show the seat unit and the seat as co-axial;
iii) The axis defined by the seat unit is not the axis of the seat unit but the axis of the seat ("seat axis"). The axis thus defined is a single axis ("a …longitudinal seat axis"). A swivelling seat would not have a single longitudinal axis but multiple longitudinal axes, depending on the position into which the seat was swivelled. Another way of putting this point is that the axis of the seat unit and the axis of the seat are assumed to be the same;
iv) One of the objects of the invention is to optimise the use of space within the cabin. A swivelling seat is far space-hungrier than a fixed seat, and it would contradict one of the stated objects of the invention to include swivelling seats;
v) The pre-characterising part of claim 1 tracks very closely the description of the invention in paragraph . As the reference to the BA First patent in that paragraph makes clear, the draftsman regarded BA First as including all the integers of the pre-characterising part of the claim. That paragraph refers to the BA First patent as disclosing "a plurality of seat units, each seat unit defining a notional longitudinal seat axis". This is exactly the same language as this integer of the claim. BA First was not a swivelling seat. It is not suggested that the characterising integer of the claim itself prescribes a swivelling seat.
each seat unit…further comprising means forming or being configurable for forming a substantially flat bed (47, 48, 67, 74, 76)
i) In a number of places when describing the prior art the patent specifically points out that a disadvantage of the prior art using a reclining seat is that it uses sculpted seat cushioning that is not specifically designed for use as a bed. If the patentee was not setting out to overcome this disadvantage there can have been no point in mentioning it;
ii) In fact the first object of the invention (paragraph ) was to provide "a flat sleeping surface";
iii) The claim requires that the seat unit (not the seat itself) "further" comprises means forming a substantially flat bed. This implies that the seat unit must include an additional element or elements which are different from those that form the seat itself and that it is those further elements that form or are capable of forming the flat bed. This interpretation is reinforced by paragraph  of the patent which refers to "self-contained means" for forming the bed. The contrast between the elements forming the seat means and the elements forming the bed means is clearly foreshadowed by the contrast in language between integer (b) (iii) and integer (b) (iv);
iv) The reference numbers in the claim identify those parts of the seat unit that form the bed. They do not include the seat pan or the front face of the seat back. Thus the reference numerals support an interpretation of the claim as limited to a "flip-over" bed. This is consistent with the way in which the bed is described in paragraph  of the specification;
v) It is the seat unit rather than the seat that is formed into a bed;
vi) When the seat unit is in bed mode then according to integer (e) a major portion of the bed is forward of the position that "was" occupied by the seat. If this is simply describing a reclining seat the past tense is inexplicable, because in bed mode the seat (either the seat pan or the seat back) will still be occupying the position the seat occupied in seat mode;
vii) If the claim encompasses simple reclining seats where the passenger sleeps on the seat-back and headrest (as opposed to flip-over seats) it is impossible to see how the flat-bed extends into an area "behind" the seat (as claimed by integer (f)). The flat bed is the seat (or at least part of it).
i) The words of the claim simply require that as well as having elements which can form a seat, each seat unit also ("further") has elements which can form a substantially flat bed. That is all. There is no requirement that the elements forming the bed be completely distinct from the elements forming the seat;
ii) The disadvantages of the prior art are not carried forward into the objects of the invention;
iii) The preferred embodiments do not illustrate separate elements;
iv) It is illegitimate to use the reference numbers to limit the scope of the claim;
v) The manner in which the claim is separated into a pre-characterising clause and a characterising clause, read in the context of paragraph  of the specification, makes it clear that the patentee considered that all the integers of the pre-characterising parts of the claim were present in BA First. Since BA First did not have flip-over seats, the patentee cannot be taken to have limited the claim to flip-over seats in the pre-characterising part of the claim. This integer is in the pre-characterising part of the claim and cannot therefore be taken to be limited to flip-over seats.
when the seat unit is formed into a bed a major proportion of the bed is disposed forwardly of the position that was occupied by the seat
i) The patentee has deliberately eschewed a fixed proportion. The use of imprecise descriptions ("substantially", "large", "thin") is common in patent claims. In other claims in the patent in suit the patentee has deliberately specified particular angles or ranges of angles. The choice of "a major proportion" was a deliberate one to avoid a fixed proportion.
ii) Although the drawings of the preferred embodiments are not to scale, when the seat unit is in bed mode only about 30 per cent of the bed is forward of the position that was occupied by the front edge of the seat pan. Mr Chapman agreed that this was so. It would be odd, to say the least, if the preferred embodiments did not fall within the claim.
iii) There is no practical difference in taking the benefit of the invention whether 47 per cent of the bed or 50 per cent of the bed is forward of the seat when in bed mode. Mr Chapman agreed that this was so.
wherein at least some of the seat units are arranged to be disposed adjacent a sidewall of the aircraft and face inwardly thereby to define between the rear of each seat and the side wall a space when the seat unit is configured as a seat and the flat bed extends into said rearward space behind the seat.
i) The use of the word "thereby" indicates that the space in question is defined as a result of the arrangement of seats in an inward facing herringbone. The space between the rear of the seat back and the shell in BA First exists however the seat is placed within the aircraft;
ii) The space in question is identified by the reference numeral (36) which identifies the triangular or trapezoidal space between the back of the seat and the side wall of the aircraft;
iii) The description of the BA First patent in paragraph  of the specification identifies the same space in BA First as being used for a counter top or a cupboard; and it is that space that reappears in the consistory paragraph  in the description of the BA First patent.
Claims 4 to 6
"wherein each seat unit further comprises a foot-rest (65) that is positioned forwardly of the seat [and which extends upwardly from the floor]."
"Preferably each seat unit further comprises a foot-rest that is positioned forwardly of the seat. Said foot rest can thus be used by an occupant of the seat to support his or her feet in-flight in an elevated position and/or by another passenger to sit on whilst visiting the occupant. Provided that such foot-rest is provided it has been found that passengers do not require the seat unit to incorporate movable leg-rest as part of the seat-forming means."
"(1) An invention shall be taken to be new if it does not form part of the state of the art.
(2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way."
The prior art
"… a seating unit comprising a fixed housing containing a primary seat with a reclinable back, wherein the back is arranged to recline in such a manner that it remains within the housing."
"The choice whether to use an inboard-facing arrangement or an outboard-facing arrangement is arbitrary because there are no significant cost advantages to either arrangement over the other arrangement. Preliminary research has shown that the outboard-facing arrangement is likely to be preferred by passengers because it provides a greater sensation of privacy than does the inboard-facing arrangement."
i) It discloses a reclining seat rather than a true bed;
ii) The reclining seat when in bed mode does not extend into a space that is defined as the result of an inward facing herringbone arrangement;
iii) The reclining seat when in bed mode does not extend rearwardly behind the seat: it is the seat.
Airbus Patent Application
i) The seats are swivelling seats;
ii) The seats are reclining seats rather than true beds;
iii) The reclining seat when in bed mode does not extend rearwardly behind the seat: it is the seat.
"The principles, structures and methods of the present invention can also be employed with other seating units rotated to lesser angles relative to the aisle. As an example, the advantages of the present invention will be gained by a first single seat unit rotated only sufficiently to allow the leg rests of said first seat or the legs of a passenger seated in said first seat to be extended into the aisle alongside a second seat positioned forward of said first seat. Such a displacement resembles the fixed echelon position shown in [BA First]. However, the present invention offers the improvements of having additional aisle space available to aid passenger mobility during boarding, deplaning and meal service."
i) The seats are swivelling seats;
ii) The seats are reclining seats rather than true beds;
iii) The seat pan does not move forward when the seat is configured for bed mode.
"(1)(a) Identify the notional "person skilled in the art"
(b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, differences exist between the matter cited as forming part of the "state of the art" and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?"
"As a result my initial impression on reading the 908 Patent was that unless the invention lay in the flip-over seat design concept, I had great difficulty in understanding what may be inventive about the 908 Patent. Indeed insofar as the 908 Patent seemed to be concerned with the bed extending into the space rearward of the seat, it seems to me that Virgin were seeking to patent space – a space which all of us working in the field knew was real estate that we had to use as economically and as efficiently as possible."
Step by step
"Once an invention has been made it is generally possible to postulate a combination of steps by which the inventor might have arrived at the invention that he claims in his specification if he started from something that was already known. But it is only because the invention has been made and has proved successful that it is possible to postulate from what starting point and by what particular combination of steps the inventor could have arrived at his invention. It may be that taken in isolation none of the steps which it is now possible to postulate, if taken in isolation, appears to call for any inventive ingenuity. It is improbable that this reconstruction a posteriori represents the mental process by which the inventor in fact arrived at his invention, but, even if it were, inventive ingenuity lay in perceiving that the final result which it was the object of the inventor to achieve was attainable from the particular starting point and in his selection of the particular combination of steps which would lead to that result."
The skilled addressee
The inventive concept
"An inward-facing, herringbone-style seat/flat bed system in which the individual seats are in columns, forming a space between the back of the seat and the aircraft sidewall which is used to provide part of the bed area and so enable a very high density of generously-sized seats."
"The insight that the triangle in the space behind one seat can be used to provide extra bed length to the next seat unit along (and thereby a greater overall seat density by moving the seats out of the aisle)."
Common general knowledge
Differences between the inventive concept and common general knowledge
"I think that when I say obviously, the minimum width of a seat that can be installed in an aeroplane either facing inboard or outboard is when it is facing inboard because you do not need access to it so the bay width between the screens is as wide as the seat. If you take those seats and face them outboard you cannot climb over the back of the seat so it is obviously the more efficient configuration, yes."
Were the differences obvious?
Differences between the inventive concept and BA First
Were the differences obvious?
Differences between the inventive concept and Airbus/Boeing
Were the differences obvious?
Differences between the inventive concept and American Airlines
i) To strip out the swivel;
ii) To strip out the ancillary items such as the table;
iii) To change the outward facing herringbone to an inward facing herringbone; and
iv) If greater passenger density was needed, to increase the angle of installation past 18o.
Were the differences obvious?
"By removing the swivelling feature from the AA Patent Application you get rid of everything that the inventor says is good about that system."
Added matter and loss of priority
"(a) if an invention to which the application in suit relates is supported by matter disclosed in the earlier relevant application or applications, the priority date of that invention shall instead of being the date of filing the application in suit be the date of filing the relevant application in which that matter was disclosed."
"The requirement for claiming priority of 'the same invention', referred to in Article 87(1) EPC, means that priority of a previous application in respect of a claim in a European patent application in accordance with Article 88 EPC is to be acknowledged only if the skilled person can derive the subject matter of the claim directly and unambiguously, using common general knowledge, from the previous application as a whole."
"The approach is not formulaic: priority is a question about technical disclosure, explicit or implicit. Is there enough in the priority document to give the skilled man essentially the same information as forms the subject of the claim and enables him to work the invention in accordance with that claim?"
"the matter disclosed in the specification of the patent extends beyond that disclosed in the application for the patent, as filed, or, if the patent was granted on a new application filed … as mentioned in section 15(9) above [i.e. divisional application], in the earlier application, as filed"
"The decision as to whether there was an extension of disclosure must be made on a comparison of the two documents read through the eyes of a skilled addressee. The task of the Court is threefold:
(a) To ascertain through the eyes of the skilled addressee what is disclosed, both explicitly and implicitly in the application.
(b) To do the same in respect of the patent as granted.
(c) To compare the two disclosures and decide whether any subject matter relevant to the invention has been added whether by deletion or addition.
The comparison is strict in the sense that subject matter will be added unless such matter is clearly and unambiguously disclosed in the application either explicitly or implicitly."
i) The court must construe both the original application and specification to determine what they disclose. For this purpose the claims form part of the disclosure though not everything which falls within the scope of the claims is necessarily disclosed;
ii) The court must carry out the exercise through the eyes of the skilled addressee who will approach the documents with the benefit of the common general knowledge;
iii) The two disclosures must be compared to see whether any subject matter relevant to the invention has been added. This comparison is a strict one. Subject matter will be added unless it is clearly and unambiguously disclosed in the application as filed;
iv) Since disclosure may be implicit, the addition of a reference to that which the skilled person would take for granted does not matter;
v) The issue is whether subject matter relevant to the invention has been added.
vi) It is important to avoid hindsight. Care must be taken to consider the disclosure of the application through the eyes of a skilled person who has not seen the amended specification and consequently does not know what he is looking for. This is particularly important where the subject matter is said to be implicitly disclosed in the original specification.
"The claims (if any – there is no rule that there should be) of the priority document are not determinative. They are just part of its disclosure. For the purposes of priority one just looks at the disclosure as a whole.
50. If the rule were otherwise one of the main functions of a priority document would be lost. Inventors and their advisors would have to start worrying not only about the technical information disclosed in the document but how it was to be claimed: have I drafted my main claim or consistory clause broadly enough? That is not the purpose of the system: the purpose at this point is to get the information justifying the later claim into a patent office of a Union country. If you do that, you can have your priority, whether you express that in a proposed claim, consistory clause, statement of invention, other text or drawing or in any combination of these."
The First Priority Document - GB Patent Application 0119459.6
"… according to one aspect of the present invention there is provided a seating system for … an aircraft, comprising a purality of seats, each seat defining a longitudinal seat axis and comprising supporting structure for attaching the seat to the floor of the vehicle and seat means comprising a seat-pan and a back-rest; characterized in that said seats are arranged side by side in longitudinally off-set relation at an acute angle to the direction of travel of the vehicle, thereby defining a generally triangular or trapezoidal space to the rear of each seat; and each seat further comprises means defining a flat bed, a major proportion of which is disposed forwardly of the seat means and which extends rearwardly into said space to extend the flat bed."
"… arranged to extend rearwardly of the seat means; and means for providing a substantially flat bed, a major proportion of which is positioned forwardly of the seat means, which extend rearwardly into the foot-box."
"According to the first particular aspect of the present invention, said flat bed may be disposed substantially at floor level, extending beneath the seat-pan into the extension box."
"selectively unfolded to form a flat bed comprising an upper surface of the under-seat pan, a surface of the seat-pan and a rear surface of the backrest
Advantageously therefore different surfaces of the seat-pan and back-rest may be used in the seat mode and the bed mode respectively. Neither of the upper surfaces of the seat-pan and front surfaces of the back-rest form part of the bed means and may therefore be upholstered with materials suitable for use on a seat."
The Second Priority Document - GB Patent Application 0202389.3
"wherein at least one of said moveable components is double-sided, comprising first and second opposite sides, one of said sides having a first seat surface that is adapted to from part of said seat, and the other side having second bed surface that is adapted to form part of said bed."
"The present invention is characterized in that at least one of the moveable components of the assembly has first surface that is specifically adapted for use as a seating surface, and second opposite side that is specifically adapted as sleeping surface."
"… there is provided an aircraft cabin installation comprising a plurality of passenger seat assemblies in accordance with the present invention, wherein said passenger seats are arranged in one or more rows that extend substantially parallely to the longitudinal axis of the aircraft cabin with each seat being arranged such that its notional longitudinal axis subtends an range in the range 35 to 55o to the longitudinal axis of the cabin …"
"… the back-rest is folded forwardly over the top of the seat-pan."
"upper and lower ends comprising first and second opposite sides, one of said sides having a first surface adapted to form the back-rest of a seat and the other side having a second surface adapted to form part of a bed."
The parent patent application
i) To provide passenger accommodation in business class "which incorporates a flat sleeping surface of maximal length";
ii) To provide a passenger accommodation unit which can be converted into a bed having maximal length;
iii) "Yet another object of the present invention is to provide a passenger accommodation unit for a vehicle having a seating surface and a bed surface that may be especially adapted for use as a bed surface";
iv) "Yet another object of the invention is to provide a seating system for a passenger vehicle, particularly an aircraft, which optimizes the use of space within a passenger cabin".
"It has been found surprisingly that a plurality of passenger accommodation units according to the present invention may be arranged within a business-class section of an aircraft cabin without significantly reducing the number of seats."
"Thus, according to another aspect of the invention, there is provided a seating system for a passenger vehicle, particularly an aircraft, comprising a plurality of seat units, each seat defining a notional longitudinal seat axis and comprising a supporting structure adapted for attaching the seat unit to a floor of the vehicle and means forming or being configurable for forming a seat comprising a seat-pan and a back-rest; characterised in that said seat units are arranged to form a column defining a notional longitudinal column axis, in which column said seat-units are arranged side-by-side in longitudinally offset relation at an acute angle to the notional column axis, thereby defining to the rear of each seat, each seat unit further comprising means forming or being configurable for forming a substantially flat bed, a major proportion of which is disposed forwardly of the position of the seat, which bed extends rearwardly into said space to extend the flat-bed."
i) the seat unit is provided with self-contained means for forming a substantially flat bed (page 10 lines 29-33);
ii) it is characterised in that the back-rest element has a first face that is specifically adapted for use as a seating surface and second opposite face that is specifically adapted for use as a sleeping surface (page 12 lines 21-27);
iii) the seat-pan element and a first surface of the back-rest element are upholstered in a manner suitable for use as a seat whilst the second reverse surface of the back-rest element is adapted for use as a bed surface (page 17 lines 25-21);
iv) the seating system comprises a plurality of self-contained seat units which each provide individual seating and sleeping accommodation for a passenger (page 31 lines 22-24);
v) the seat unit comprises a seat housing and an ottoman spaced forwardly of the housing (page 31 lines 28-29);
vi) where a plurality of passenger seat assemblies in accordance with the invention are installed in a cabin, they can be used to give the cabin two different visual appearances or ambiances according to whether a majority of the seat assemblies are disposed in a bed configuration or a seat configuration (page 60 lines 4-8);
vii) the seat and bedding surfaces of the back-rest element of a passenger seat assembly can be given respectively different visual appearances (page 64 lines 32-33);
viii) the seat and bedding surfaces can be respectively adapted specifically for use for their given purposes (page 65 lines 4-5);
ix) in bed configuration the seat-pan element is completely or substantially concealed by the back-rest element (page 65 lines 10-11).
"All of the passenger seat assemblies described in detail in the Parent Patent Application shared, amongst other common features, the feature of not using the surfaces which formed the seat in seat mode when forming the bed in bed mode. This is achieved either by "flipping" the back-rest of the seat so as to use the rear side (taken in seat mode) to form the surface of the bed in bed more, or by providing the bed entirely separately from the seat, i.e. under the position of the seat."
"Said seat forming means and said bed forming means may comprise one or more moveable passenger-bearing elements which are selectively configurable to form, in a seat mode, at least part of the seat for the passenger or, in a bed mode, at least part of said flat bed, and advantageously the flat bed in the bed mode is disposed at substantially the same level as the seat-pan in the seat mode."