Strand, London, WC2A 2LL
B e f o r e :
| VIRGIN ATLANTIC AIRWAYS LIMITED
|- and -
|DELTA AIRWAYS, INC
Mark Vanhegan QC and Brian Nicholson (instructed by Wragge & Co LLP) for the Defendant
Hearing dates: 17-18 November 2010
Crown Copyright ©
MR. JUSTICE ARNOLD :
|The Contour Action||2-20|
|The judgment of Lewison J||7-12|
|The first judgment of the Court of Appeal||13-19|
|The second judgment of the Court of Appeal||20|
|Subsequent events in the EPO||25-26|
|The Customer Actions||27|
|Other pending proceedings and applications||28|
|Virgin's claim against Delta||30-31|
|Principles applicable to summary judgment applications||32-33|
|Summary judgment in patent cases||34-36|
|Summary judgment in the present case||37-42|
|Delta's case in summary||43|
|Virgin's case in summary||44|
|Delta's fallback position||45|
|Construction of patent claims: the law||47-49|
|The skilled team||50|
|The common general knowledge||51|
|Claim 1 of the Patent as amended||54|
|What is the effect of Delta's acceptance of the findings in the Contour Action?||55-56|
|Construction of claim 1||57-84|
|The subsidiary claims||74-77|
|The inventors' purpose||78-79|
|Avoidance of meticulous verbal analysis||80-81|
|Fair protection for the patentee||82|
|Reasonable certainty for third parties||83|
|Infringement under section 60(2)||88-90|
|Domestic case law on infringement by dealings in a kit of parts||91-109|
|Foreign case law on infringement by dealings in a kit of parts||110-126|
|The parties' submissions||127-128|
The Contour Action
"A seat unit for a passenger seating system for an aircraft, the seat unit defining a notional longitudinal seat axis (C-C) and comprising a supporting structure (42) adapted for attaching the seat unit to a floor of an aircraft (12) and means forming or being configurable for forming a seat comprising a seat-pan (71) and a back rest (72), said seat unit being adapted to be arranged side-by-side with at least one further seat unit to form a column defining a notional longitudinal column axis (B-B), in which column said seat-unit is adapted to be arranged in longitudinally offset relation at an acute angle to the notional column axis (B-B), the seat unit being 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 unit is configured as a seat, the seat unit further comprising means forming or being configurable for forming a substantially flat bed (47,48,67,74,76), 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 the flat-bed extends into said rearward space (36) behind the seat"
The judgment of Lewison J
"179. Although I have decided that the claim for infringement of design right fails, I must nevertheless set out the facts about what Contour actually do, in case I am wrong in my conclusion. The facts were more or less common ground. They are relevant both to the case on design right and also to the case on patent infringement.
180. Contour manufacture and supply Solar Eclipse and its derivatives into individual passenger accommodation units PAUs. The manufacturing takes place in the United Kingdom at Contour's premises in Cwmbran. They do not make delivery of individual PAUs since it is more usual for customers to insist upon the full number of PAUs for a shipset to be delivered in one go. However the shipset itself is assembled in its herringbone form on board the aircraft to be fitted with the shipset. To date all such assembly has taken place outside the United Kingdom. The assembly itself is carried out by the aircraft manufacturer or the airline's appointed maintenance provider.
181. Before shipment Contour temporarily assembles a small number of seat units on the shop floor (and without attachment to aircraft seat tracks) so that the customer and aircraft manufacturer can inspect them. However an entire shipset is never assembled in the UK for this purpose."
The first judgment of the Court of Appeal
"(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);
(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."
The second judgment of the Court of Appeal
i) Claim 1 was amended to include the features of dependent claims 3, 4, 9 and 11 together with additional wording. Parallel amendments were made to independent claim 2.
ii) All the seat unit claims (claims 13-19 in the UK designation) were deleted.
iii) The same claims now apply to all designated states.
iv) Corresponding amendments were made to the description.
Subsequent events in the EPO
The Customer Actions
Other pending proceedings and applications
i) An inquiry as to the damages suffered by Virgin as a result of Contour's infringements of the Patent in accordance with the order of the Court of Appeal. I was informed that Virgin is claiming around £49 million on the inquiry.
ii) An application by Contour for permission to appeal to the Supreme Court on the Unilin point.
iii) An application by Contour to the Court of Appeal for an order that the relief granted by the Court of Appeal pursuant to the first judgment be dissolved as a consequence of the subsequent amendments to the Patent and that there be a trial of the new issues arising out of the amendments, relying on Dudgeon v Thompson (1877) 3 App Cas 34. Contour also seeks an amendment to the wording of the Court of Appeal's order under CPR rule 40.12.
iv) A claim by Contour in this Court for a declaration of non-infringement in relation to a modified version of the Solar Eclipse.
Virgin's claim against Delta
"4. Since about mid-2005 (the Claimant does not know the precise date at present) Contour has been making and dealing in a new herringbone layout 'flat-bed' aircraft seat system based on and incorporating the 'Solar Eclipse' premium business class seat (hereinafter, 'Solar Eclipse seat systems' and 'Solar Eclipse seats' respectively). Each individual seat unit is separated from other seat units by privacy screens, and is adapted to fit other seat units to form a seat system.
5. Seat systems, components thereof as further identified below and seat units, manufactured by Contour to the Solar Eclipse specification, were first provided by Contour to the Defendant for use in its fleet in or around March 2008.
6. Such seat systems and seat units forward in the claims of European patent (UK) number 1 495 908 ('the Patent'). In particular:
a. seat systems fall within claims 1, 2 and 4-11;
b. individual seat units fall within claims 13-15 and 17-19.
9. Contour assembles individual seat units into a complete shipset of seat units in the United Kingdom by agreement with the customer (i.e. the Defendant) such that the customer has an opportunity to inspect and approve said shipset.
10. To the extent that Contour provides complete but unassembled seat systems to its customers (i.e. the Defendant) for assembly abroad it does so with complete instructions for their assembly, and such activities amount to an infringement of the aforesaid claims to seat systems on their proper construction and/or as kits of parts."
Principles applicable to summary judgment applications
"As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v Hillman  2 All ER 91;
ii) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel  EWCA Civ 472 at .
iii) In reaching its conclusion the court must not conduct a 'mini-trial': Swain v Hillman.
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at .
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)  EWCA Civ 550.
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd  FSR 63.
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd  EWCA Civ 725."
Summary judgment in patent cases
"The difficulty that arises where it is sought to strike out a patent action on the ground that there is no arguable case of infringement arises because the construction of a patent, though a question of law for the court, is not a mere question of the judge reading the patent with the assistance of the legal arguments of counsel; it is a much more sophisticated exercise for two reasons. First the language of the patent is deemed to have been addressed by the inventor not to a panel of equity draftsmen but to 'the man skilled in the art', and consequently the court has to consider what the language of the patent would mean not to lawyers, but to the man skilled in the art with his knowledge of the art. Secondly it has long been established that a person does not avoid infringing a patent if he departs from the strict requirements of the claims by what the man skilled in the art would recognise as an 'obviously immaterial variant' – (to adopt a phrase conveniently used by Nicholls LJ in Anchor Building Products Ltd v Redland Roof Tiles Ltd  RPC 283)."
"I do not believe that the judge was right to conclude that the alternative case put forward by the patentees is unarguable upon the assumed facts. Despite the view as to the meaning of claim 20 which I have expressed above, it would not be right, at this stage of the action, to come to any concluded view as to the ambit of claim 20. The patent must be construed as a whole and the claims interpreted according to the Protocol on Interpretation. The subject of the specification is complicated. To come to a concluded view, the mantle of a man skilled in the art must be adopted. That will require the aid of expert evidence. The words of Dillon LJ in Strix v. Otter Controls Ltd which I have quoted, are in my view just as apt today after the Civil Court Practice Rules [sic] came into force as they were when the Rules of the Supreme Court were applicable."
Summary judgment in the present case
"Having looked at all the amendments, I still say that everything I said in that previous report about the background to and the general teaching of the VAA Patent still holds true."
Delta's case in summary
i) Claim 1 as amended on its true construction is limited to a passenger seating system assembled and arranged on an aircraft.
ii) For present purposes, Delta does not dispute that, if a plurality of Solar Eclipse seats is assembled and arranged on an aircraft in accordance with Contour's installation instructions, the result will be a passenger seating system falling within claim 1 as amended.
iii) Virgin does not allege that Contour has assembled and arranged a plurality of Solar Eclipse seats for supply to Delta into a passenger seating system on an aircraft in the UK. Indeed, on the facts found by Lewison J in the Contour Action at -, Contour has never assembled and arranged a plurality of Solar Eclipse seats into a seating system on an aircraft in the UK. The seats have only been assembled and arranged into seating systems on aircraft outside the UK.
iv) It follows from points (i) and (iii) that Virgin's allegation that Contour has infringed claim 1 as amended pursuant to section 60(1)(a) of the Patents Act 1977 is unsustainable on any conventional basis because Contour has not made, disposed of, offered to dispose of, used or kept any product falling with the claim in the UK.
v) Even assuming that it is possible to infringe a product claim pursuant to section 60(1)(a) by making, etc., a complete "kit of parts" in the UK for assembly into the patented product abroad, that does not assist Virgin in the present case because Contour has not made, etc., any such complete kit in the UK. To fall within claim 1, the seating system requires the presence of an aircraft, and Contour does not make or supply this.
vi) Virgin does not allege that Contour has infringed claim 1 pursuant to section 60(2) of the 1977 Act. Nor could it do so, since it is a requirement of section 60(2) that the essential means are "intended to put the invention into effect in the United Kingdom".
Virgin's case in summary
i) Delta is precluded from advancing the case summarised above by its acceptance, for the purposes of this application, of the findings made by the courts in the Contour Action, since those findings included a finding of infringement of claim 1.
ii) Claim 1 on its true construction is not limited to a passenger seating system assembled and arranged on an aircraft. It extends to a plurality of seat units which are adapted to be assembled and arranged on an aircraft.
iii) If claim 1 is construed in accordance with Virgin's construction, then on the facts found by Lewison J in the Contour Action Contour has infringed claim 1 on a conventional basis.
iv) Even if claim 1 is construed in accordance with Delta's construction, it is arguable that Contour has infringed by making, offering to dispose of and disposing of a "kit of parts" in the UK. This raises a difficult question of law which cannot be summarily resolved both because it requires further facts to be found and because the parties did not have time have adequately to research it prior to or during the hearing of this application.
Delta's fallback position
"procuring the manufacture and supply of shipsets of Solar Eclipse seat unit by Contour for exportation out of the United Kingdom, during the course of which each seat unit will be manufactured, tested, packaged and (where necessary) inspected only as a discrete article distinct and separate from any other seat unit does not infringe the Patent as amended."
Construction of patent claims: the law
"One might have thought there was nothing more to say on this topic after Kirin-Amgen Inc v Hoechst Marion Roussel Ltd  RPC 9. The judge accurately set out the position, save that he used the old language of Art.69 EPC rather than that of the EPC 2000, a Convention now in force. The new language omits 'the terms of' from Art.69. No one suggested the amendment changes the meaning. We set out what the judge said, but using the language of the EPC 2000:
 The task for the court is to determine what the person skilled in the art would have understood the patentee to have been using the language of the claim to mean. The principles were summarised by Jacob LJ in Mayne Pharma Pty Ltd v Pharmacia Italia SpA  EWCA Civ 137 and refined by Pumfrey J in Halliburton Energy Services Inc v Smith International (North Sea) Ltd  EWHC 1623 (Pat) following their general approval by the House of Lords in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd  RPC 9. An abbreviated version of them is as follows:
(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 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, a contextually, 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."
"12. First in Kirin-Amgen itself Lord Hoffmann said that the skilled reader:
' … reads the specification on the assumption that its purpose is to both describe and demarcate an invention – a practical idea which the patentee has had for a new product or process.'
' … it must be recognised that the patentee is trying to describe something which, at any rate in his opinion, is new …'
13. So the skilled reader is taken to suppose that the patentee knew some patent law – that his claim is for the purpose of defining the monopoly and that it should be for something new. Knowledge of that may well affect how the claim is read – for instance one would not expect the patentee to have used language which covered what he expressly acknowledged was old.
14. Moreover as Lord Hoffmann said at :
' … The words will usually have been chosen on skilled advice. The specification is not a document inter rusticos for which broad allowances must be made.'
15. We think it would unrealistic – indeed perverse – for the law to say that the notional skilled reader, probably with the benefit of skilled advice, would not know and take into account the explicit drafting conventions by which the patent and its claims were framed. Likewise when there is a reference to the patent being a divisional application, it would be perverse to work on the basis that the skilled man would not know what that means. A real skilled man reading a patent which, as in the case of the Patent, refers to 'the parent application' would surely say 'what's a parent application?' – and he would go on to ask a man who knows, probably a patent agent."
i) It is possible to frame claims in a variety of different ways. In particular, claims may be directed, subject to constraints on unity of invention, both to the whole of an inventive product and to its key components separately.
ii) It is possible to infringe a patent both directly under section 60(1) of the Patents Act 1977 corresponding to Article 25 of the Community Patent Convention and indirectly under section 60(2) of the 1977 Act corresponding to Article 26 CPC. As discussed in more detail below, the latter type of infringement involves the supply or offer to supply of "any of the means, relating to an essential element of the invention" i.e. less than the whole of a claimed product.
iii) Patents are territorial in nature. This has two aspects to it. The first is that a UK patent prevents persons other than those "entitled to work the invention" (to use the language of section 60(2)) from doing things in the UK. The second is that a patentee can in principle obtain, and may well have in fact obtained, parallel patent protection in other countries. In saying this, I am not going so far as to presume that the skilled person will actually carry out a search to locate any corresponding foreign patents, even though a well-advised person would do so and nowadays would be able to locate most such patents quickly and easily using electronic databases.
The skilled team
"191. There is much common ground about the identity of the notional skilled addressee who, in this instance, is a team. The team is a team of aircraft and transportation designers comprising designers and engineers with a knowledge [of] aircraft seats in general, and in particular reclining aircraft seats. The team members would include:
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.
192. The team may also include operators of commercial civil aircraft, although nothing turns on this addition to the team."
The common general knowledge
"23. There was no significant controversy about this. The judge sets it out at  and we do not need to set it all out here. We will focus just on the bits that matter for present purposes. The skilled man would know about the important developments in aircraft seats and seating systems. In particular he would know about what were called BA First (disclosed in the BA Application), BA Yin Yang and other commercially used seat/bed systems. We borrow with gratitude and some modification part of the judge's descriptions of these.
24. For the first class passenger, all this [i.e. simple seats which reclined but not as far as the horizontal] changed in 1996. In that year BA introduced a new seating system for its first class cabin called BA First, which allowed for a completely flat bed. It provided seats in individual "pods" or compartments formed by privacy screens. Each compartment consisted of both a seat and an ottoman (or footstool) which could be used both as part of the bed when the seat was laid flat and also as occasional seating by a guest passenger (hence it is sometimes called a "buddy seat"); and each seat was at a slight angle to the longitudinal axis of the plane, facing towards the cabin wall. This angled arrangement of seats is called a "herringbone". Where the seats face towards the aisle the herringbone is called an "inward facing herringbone"; otherwise it is called an "outward facing herringbone". The BA First seating arrangement was an outward facing herringbone, which BA had adopted in preference to an inward facing herringbone because it gave passengers more privacy.
25. The individual seat/bed pod of BA First was like this (the drawing is from the BA Application):
A mechanism was provided so that the passenger could cause the seat to slide forward to meet the "ottoman". Note that the head portion moved slightly backwards within the pod – about 4 to 5 inches in practice.
26. An example of an inward herringbone was in fig. 4 of the BA Application:
Although not in practice used by BA or any of the other airlines that followed the possibility of an inward facing herringbone was known to all.
27. The judge thought (see  – ) that an inward herringbone - because it was not seen "as a basis for further action" – did not count for the purposes of common general knowledge. However, at least for the purposes of considering the scope of a claim, if the reader knows of an idea and rightly assumes that the writer knew it too, then the reader will surely bear it in mind when trying to work out what the writer meant by the words he used. In other contexts, for instance obviousness, a well-known but unused idea may have less significance compared with one that was well in use. In this appeal the point does not really matter because neither side's case really depended on whether inward facing herring-bones were cgk.
28. BA First was a giant success. Other airlines followed (details are in the judgment at ). Initially it was all for first class, all with outward herringbones. American Airlines in 2000 used a variant with a swivelling seat.
BA Yin Yang
29. Business class full length bed/seats came next. There is less room for these. BA came out with what was called the Yin Yang seat. It had interlocking seats in a head-to-toe formation; one passenger sitting and sleeping next to the aisle and the other sitting and sleeping next to the window. One of the two passengers faced forwards; and the other faced backwards. This arrangement of seats provided good density of accommodation. However, it had its drawbacks. The passenger in the seat further from the aisle had to climb over the other passenger to get in and out of his seat; and many passengers did not like the feeling of travelling backwards.
30. This too was business class. The seats were arranged in conventional rows and columns. Although the J2000 provided a bed, it did so at a slight tilt; and was in the nature of a reclining seat. The foot of the bed had to be partially accommodated under the seat of the passenger in front. The J2000 was a moderate commercial success."
"31. The title of the Patent is 'a novel seating system for a passenger vehicle, particularly an aircraft, and a seating unit for a passenger system.'
32. So at this early stage the skilled man thinks he is going to be told about both a novel system and a novel unit. The Patent then goes on to acknowledge various items of prior art and their problems. It says, at  that the old, pre-BA First, partial recliners were not all that comfortable because they were not truly flat. It says at  that the possibility of using what might be called a 'full recliner' has been disclosed but that the pitch between adjacent rows of seats has to be increased. It also points out that if you use the seat also as part of a bed 'the surface is not ideal, because the foam or other padding on the seat is generally sculptured for use as a seat, whereas for a bed it is desirable to have a substantially flat surface.'
34.  is a most important paragraph and central to the second issue of construction of claim 1 (issue (iii)). It is an acknowledgement of the BA Application and a statement of what the inventors of the Patent say are its disadvantages. It begins by describing briefly the seat unit of the BA Application. It says that in bed mode it forms 'a continuous, flat sleeping mode.' Mr Meade emphasises flat – saying it shows that the inventors do regard the bed of the BA application (with its sculpted seat) as 'flat.'
35. Having first referred to the BA Application bed units,  goes on to describe how they are arranged – broadly this is, as we have already described, as an inward or outward herringbone. But it is important to see how the inventors describe it because it throws considerable light on the meaning of claim 1. So we set it out in full:
'The seating unit defines a notional, longitudinal seat axis, and a plurality of such seating units may be arranged with the cabin side-by-side in a longitudinally offset relation with respect to the longitudinal axis of each seat, with each seating unit being oriented at an acute angle to the longitudinal axis of the aircraft fuselage, 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 a cupboard or other storage space.'
We emphasise the words about the space defined. One can see it in fig. 4 of the BA Application (see  above). The arrow 21 runs through it.
36.  continues, saying that the seating unit of the BA Application:
'… 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).'
37. It then sets out three disadvantages of the BA Application. The judge summarises these accurately:
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.
38. After an acknowledgement of Yin Yang and a statement of its disadvantages (extravagant use of space, too short for tall passengers and the use of cushioning not specifically designed for a bed) and of two other pieces of prior art we need not refer to), the Patent comes to set out the objects of the invention at -. The judge accurately summarises them:
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.
39. The Patent then begins with its description of the invention, starting, as is conventional, with what is often called the 'consistory clause'. Unusually (we do not suggest the skilled man would know that) it is not exactly the same as claim 1. This is what is said:
'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 [the BA Application]), 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 difference between claim 1 and the consistory clause lies in the fact that the latter includes the italicised passage – one upon which Mr Meade relies and one which Mr Vanhegan fairly accepts causes him difficulty as we shall explain below. Immediately following the italicised passage is a description of the 'space-packing' idea – using the space behind the seat formed by the inward herringbone to increase the size of the bed.
40. Moving on, the Patent goes on to describe various 'preferred' forms of the invention. It is not necessary to recite most of these. Mr Vanhegan particularly relies on passages in ,  and  of the Patent. So we set them out:
' … Said first and second elements may [misprinted as 'my'] occupy all of the space to the rear of the seat.
 [part of the description of the specific embodiment] … The space 36 behind each seat 71,72 is thus used to extend the length of the bed surface 47,48, 67, 74, 76 provided by the seat unit 40 in the bed configuration rearwardly of the seat 71,72 into said space 36.
 [again speaking of the specific embodiment] … the seat units 40 … are arranged such that to the rear of each seat 71,72 the seat unit defines a generally triangular or trapezoidal space 36 which is occupied by the first surface 40 and the second surface 48 of another seat unit 40.'
41. The Patent has only one specific embodiment. The individual seat/bed unit described and pictured is, it is accepted, at least for present purposes, novel and inventive. It is shown in fig. 2:
42. The picture shows three units. On the right is normal seat mode, in the middle in recline mode and on the left, bed mode. Instead of getting to bed mode by just reclining more, the seat is turned over so as to use the seat back as part of the bed. This was called 'flip-over' in argument and we shall use that term to describe both this particular arrangement and other arrangements which allow the passenger to sit and sleep on different surfaces.
43. Flip-over has the advantage that you no longer have the problems you have with a flat bed recliner - those caused because you are using the seat pan and back also for the bed. With flip-over you can get an entirely smooth flat surface save for the join with the ottoman – which is not that important because it is where your legs will be."
Claim 1 of the Patent as amended
" A passenger seating system for an aircraft, comprising a plurality of seat units (40),
 each seat unit defining only one notional longitudinal seat axis (C-C) and
 comprising a supporting structure (42) adapted for attaching the seat unit to a floor (30) of an aircraft (12) and
 means for forming or being configurable for forming a seat comprising a seat-pan (71) and a back-rest (72),
 wherein each seat unit further comprises a foot-rest (65) positioned forwardly of the seat,
 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),
 wherein at least some of the 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 unit is configured as a seat,
 each seat unit further comprising means for forming or being configurable for forming a substantially flat bed (47,48,67,74,76),
 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,
 wherein said seat forming means and said bed forming means comprise one or more movable passenger-bearing elements which are selectively configurable to form, in a seat mode, at least part of the seat for a passenger or, in a bed mode, at least part of said flat bed, and
 wherein the flat bed in the bed mode is disposed at substantially the same level above an aircraft floor (30) as the seat-pan (71) in the seat mode, and
characterised in that
 the flat-bed extends into said rearward space (36) behind the seat,
 in that said acute angle is in the range 30 - 60°, and
 in that a generally triangular passenger support element is disposed in said rearward space (36) substantially coplanarly with said one or more movable elements when said movable elements are configured in the bed mode and is adapted to form part of said bed."
What is the effect of Delta's acceptance of the findings in the Contour Action?
Construction of claim 1
" Embedded within the floor 30, the infra-structure of the fuselage 10 comprises a plurality of pairs of seat tracks 33, 34 of the kind well known to those skilled in the art…
 … Thus, the seating system in accordance with the present invention may be constituted by a plurality of seat modules as shown in FIG. 1A … By attaching a plurality of said seat modules 80 to a pair of seat tracks 32, 34 in a cabin 20, 21, a plurality of seat units 40 can be assembled, each unit 40 comprising the seat housing 43 of one module and the ottoman 65 of another adjacent module 80.
 … Each seat module 80, may be attached directly to seat track pair 32, 34 or, alternatively, the supporting structure 42 of each module 80 may comprise a plinth or palette (not shown), which plinth or palette is attached to seat tracks 32, 34…."
"95. The issue turns on the construction of integer (d). What is meant by thereby to define between the rear of each seat and the sidewall a space (36) when the seat is configured as a seat? What is the space referred to? For it is into that space that feature (f) requires the flat-bed to extend.
96. Mr Vanhegan argues thus:
i) The BA Application shows, and BA First had, a seat in which the seat moves back as one changes it to bed mode – see  above.
ii) The space behind the seat in seat mode is defined by the rear of the seat and the sidewall.
iii) So feature (f) of the claim is satisfied.
iv) Thus the BA Application (and BA First) anticipates the claim.
97. The argument depends therefore on construing the 'space' as meaning any area behind the actual seat when in seat mode.
98. Mr Meade contends that is wrong. He produced a convenient diagram to illustrate the difference between his contention and that of Mr Vanhegan. It is a coloured enlarged portion of fig. 4 of the BA Application:
99. This shows two 'spaces' – the pink is the space, rear of the actual seat, into which the bed extends. It is all in the pod. The green is the space behind that. Mr Meade submits that the bed of the Patent claim must extend into the green. Since that does not happen in BA, there is no anticipation. So it all depends on what the 'space' of the claim means.
100. We have no doubt that the skilled man would read this part of the claim as confined to the 'green' space. He would know that the patentee was specifically acknowledging BA as old – so he can hardly have been intending to claim it by the words he used. Only if no other possible construction is possible would the skilled man be forced to conclude that the patentee had claimed that which he knew was old.
101. Secondly such a construction would miss the whole point of the space-saving idea of the patent. The point is that by using a herringbone you have 'lost' some space. You get some of it back by extending the bed into the space lost because you have a herringbone. The pink space of BA is not space lost because you have a herringbone – it is space which is occupied by the bed in its pod – nothing to do with the herringbone.
102. So when the skilled reader asks himself 'What is the defined space?' he takes into account that it is the herringbone which thereby defines the space.
103. Now it is true that in various passages (we set out those particularly relied upon by Mr Vanhegan above at ) the patentee talks about the space rear of the seat. But the context is always where in bed mode the bed extends into the space caused because there is a herringbone. All the space behind the seat is such a space – green space. So that does not tell the skilled man that the patentee intended to include other space – the pink space of the BA Application for instance."
The subsidiary claims
"A seating system as claimed in any preceding claim, wherein said aircraft comprises an accommodation cabin (20, 21) in which the seating system is located, which cabin defines a notional longitudinal cabin axis (A-A), and wherein said notional column axis (B-B) is substantially parallel to said cabin axis."
"An accommodation cabin for an aircraft comprising a seating system as claimed in any preceding claim."
The inventors' purpose
Avoidance of meticulous verbal analysis
"… over-meticulousness is not to be equated to carefulness. Care in working out what the patentee was aiming at when he chose the words he used is absolutely necessary."
Fair protection for the patentee
i) The specification clearly distinguishes between the seating system and the seat units of which it is comprised.
ii) In principle the patentee would have been able to obtain claims to the seat units.
iii) If claims to the seat units were not in the Patent, it might well be because they were in a divisional application (as in fact they now are).
iv) Even the claims to seating systems would be infringed by dealings with seat units falling within section 60(2).
Reasonable certainty for third parties
"(1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say—
(a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise;
(b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent;
(c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.
(2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.
(3) Subsection (2) above shall not apply to the supply or offer of a staple commercial product unless the supply or the offer is made for the purpose of inducing the person supplied or, as the case may be, the person to whom the offer is made to do an act which constitutes an infringement of the patent by virtue of subsection (1) above."
Prohibition of direct use of the invention
A Community patent shall confer on its proprietor the right to prevent all third parties not having his consent:
(a) from making, offering, putting on the market or using a product which is the subject-matter of the patent, or importing or stocking the product for these purposes;
(b) from using a process which is the subject-matter of the patent or, when the third party knows, or it is obvious in the circumstances, that the use of the process is prohibited without the consent of the proprietor of the patent, from offering the process for use within the territories of the Contracting States;
(c) from offering, putting on the market, using or importing or stocking for these purposes the product obtained directly by a process which is the subject-matter of the patent.
Prohibition of indirect use of the invention
1. A Community patent shall also confer on its proprietor the right to prevent all third parties not having his consent from supplying or offering to supply within the territories of the Contracting States a person, other than a party entitled to exploit the patented invention, with means relating to an essential element of that invention, for putting it into effect therein, when the third party knows, or it is obvious in the circumstances, that these means are suitable and intended for putting that invention into effect.
2. Paragraph 1 shall not apply when the means are staple commercial products, except when the third party induces the person supplied to commit acts prohibited by Article 25.
3. Persons performing the acts referred to in Article 27(a) to (c) shall not be considered to be parties entitled to exploit the invention within the meaning of paragraph 1."
Infringement under section 60(2)
"22. Mr Arnold, who with Mr Brandreth appeared in this court for William Hill, submitted that section 60 of the 1977 Act was confined to acts committed within the United Kingdom. For support he relied upon the fact that patents are territorial in nature (see Fort Dodge Animal Health Ltd v Altzo Nobel NV  FSR 222) and a passage in my judgment in Plastus Kreativ AB v Minnesota Mining and Manufacturing Co  RPC 438, 442:
'The power to make a declaration under section 71 of the 1977 Act is confined to acts within the United Kingdom. The acts referred to are the acts of infringement which are set out in section 60 of the Act. That section makes it clear that infringement only occurs if a person does an act within the United Kingdom without the consent of the proprietor.'
23. What I said in the Plastus Kreativ case is, I believe, correct, but that statement does not help to resolve the dispute as to the true meaning of the words in the last half of section 60(2) and in particular the meaning of 'to put, the invention into effect in the United Kingdom'. It was directed at the first territorial limitation in section 60(2) and the only territorial limitation in section 60(1), as was the judgment in the Fort Dodge case.
24. I believe that Mr Arnold is correct and that 'the invention' referred to in section 60(2) is that claimed in the patent: see section 125. In this case, as Mr Arnold pointed out, the claimed invention is an apparatus. If so, I believe he is right that the words 'to put, the invention into effect' must require the means to be intended to put the apparatus claimed into effect: thereby requiring the claimed apparatus to become effective. Thus the means … must be suitable for putting and be intended to put the claimed apparatus in a state of effectiveness, essentially to put into an infringing state in the United Kingdom.
25. That construction is supported by the purpose of section 60(2). It is intended to extend the right of a patentee to prevent what are called the direct infringing acts of section 60(1) to include also the indirect infringing acts of section 60(2). That is supported by the records of the Luxembourg Conference on the Community Patent 1975 which shows that the word 'therein' in Article 26(1) was inserted to clarify paragraph 1 'to the effect that it was prohibited to offer or supply the means referred to for using the invention within the territories of the contracting states'. Thus the committee contemplated that Article 26(1) was concerned with means which were essential for the use of the invention and that both the supply of the means and the use should take place in the relevant territories. The construction proposed is also borne out by the headings to Articles 25 and 26 which both state that the articles are concerned with 'Prohibition of … use of the invention'. If Article 26(1) had been concerned with effect, then I would have expected the heading to that article to have been different to that in Article 25."
Domestic case law on infringement by dealings in a kit of parts
"6. A method of producing compost from decomposing vegetable matter substantially as herein described.
14. A compost bin substantially as described herein and with reference to the accompanying drawings."
"Joint tortfeasance and allied matters
As will be realised, the above conclusions have been reached on the assumption that the defendants themselves have been shown to have carried out the several acts which constitute infringement, but the matter is not as simple as that, because infringement is alleged both before and after the coming into force of the new 1977 Act. This in fact came into force on 1 June 1978, and it follows that conclusions also have to be reached on the meaning and effect of section 60 (2) of the new Act and of the Transitional Provisions which are to be found in Schedule 4 and particularly section 3.
The facts are that the defendants themselves do not normally themselves make compost. No doubt they have made it experimentally at one time, though this is not proved. However they sold before the Act and now after the Act continue to sell kits of parts for their customers to build into bins. They issue full instructions (Bundle C, pp. 15 to 18) with every kit to enable the customer to do so. By virtue of these actions, in my judgment, the defendants are joint tortfeasors with their customers who erect and use their bins in accordance with the defendants' instructions. When a customer does so and makes compost, as he is told to do, he is in my judgment a joint tortfeasor with the defendants and they are similarly joint tortfeasors with him. Both have a common design within the meaning of The Koursk  P. 140 and Morton-Norwich Products v. Intercen Ltd  R.P.C. 501, respectively. Here the defendants are joint tortfeasors with Miss Harris who admittedly bought a kit of parts for a bin from the defendants and it is a proper inference that she made it up. It is not in fact positively proved that she made compost in it. However it is quite clear from their advertisements that the defendants invited their customers to make bins from the kits they sold and to use them for making compost. It is a fair inference that at least some of them did so and the defendants knew quite well that they would do so as alleged in the particulars of infringement. The same applies to Miss Harris. That being so I find the defendants to be joint tortfeasors with their customers, including Miss Harris, in infringing claim 6.
As regards claim 14, the bin claim, the defendants here are not shown to have sold bins other than as a kit or parts with full instructions how to erect. For my part I do not think any practical distinction can be drawn from the point of view of infringement between the sale of an article in parts with full instructions how to put it together, at least where as here putting it together involves no more than the exercise of the practical ability possessed by the ordinary member of the public who may be expected to buy and does buy the article in question. I would draw no distinction here, and I do not think there is anything to the contrary established by the cases cited to me. In particular reliance was placed by the defendants on Belegging-Lavender v. Witton Industrial Diamonds  F.S.R. 59, where it was stated that knowledge on the part of the sellers that the goods were intended for the purpose of infringing was not necessarily enough to make the seller guilty of infringement. This case was in fact not strictly concerned with the law of infringement but with the question whether the allegations in the pleading were sufficient. It is however said that there was no nexus there between the seller and whoever may have used the grit in question so as to be embedded in a resin bond. Here in all the circumstances of widespread advertisement and instructions issued with each kit of parts it is in my judgment fair and proper to assume a nexus between the defendants and their customers even if they are not specifically identified.
It is argued for the defendants here that there is a difference between the pre-1977 law and the law as enacted in section 60 (2) of that Act. There is no doubt that under the latter section the defendants on the facts here have infringed both claims 6 and 14 by the sale of their kits of parts. Though the matter is not so clear under the old law, in my judgment, having regard to the facts, the same conclusion should be reached. It follows in my judgment that the defendants have infringed both claims 6 and 14, the latter directly, since I regard the kit of parts in the circumstances stated to be a 'bin' within the claim, so there is direct infringement. The only difficulty in respect of joint tortfeasance is the lack of actual proof of common design owing to the absence of positive evidence as to what the customers have done with the kits of parts and the bin when completed. It is however in my judgment fair and proper to infer that bins have been erected and have been used for making compost by the method claimed in claim 6. I think the law and our courts would fairly be open to criticism if they failed to take a realistic view of what in fact was clearly intended to take place and has certainly taken place in practice. If however I am wrong in this conclusion and not entitled to draw the inference in question, there is certainly infringement of claims 6 and 14 by the defendants who have procured their customers to infringe as alleged, knowing quite well that the customer would assemble the bin and use it in accordance with the defendants' instructions and thereby would infringe at least those claims. In any event therefore, even if joint tortfeasance within the meaning of The Koursk and Intercen cases ought not to be inferred, there is infringement by the defendants by way of procuring customers to infringe and I so hold."
"It follows in my judgment that the defendants have infringed both claims 6 and 14, the latter directly, since I regard the kit of parts in the circumstances stated to be a 'bin' within the claim, so there is direct infringement."
Read out of context, this appears to be a finding of direct infringement by the defendant itself i.e. not a finding based on joint tortfeasance. Read in context, however, I am doubtful about this. If it is a finding of direct infringement, it is a finding under the old, pre-1977 law, not under section 60(1). That being so, however, one would have expected Graham J to have referred to the existing authorities on whether selling a kit of parts amounted to direct infringement (discussed in Terrell on the Law of Patents, 12th ed, at paras. 358-359). In any event, direct infringement under the Patents Act 1949 was based upon the wording of the Royal Command contained in the letters patent, not upon the wording of the statute, let alone Article 25 CPC.
"Scaffolding for working in the interior of hollow elements of large dimensions such as tanks, quarries, etc., of the type made up of a support structure which is intended to rest on the ground and which is equipped with modular platforms mounted at variable heights in an overhanging manner on the periphery of said structure and means of access to said platforms characterized in that:
(a) the said support structure is formed from two legs interconnected by at least two cross pieces forming floorings, located at different levels and stiffening the assembly;
(b) the modular platforms are mounted on the external face of the said legs;
(c) the means of access to the said platforms are disposed in or in the vicinity of the legs, and in that;
(d) the legs of the support structure are each equipped with at least two lines of post feet, preferably three, disposed parallel to the longitudinal axis of the scaffolding, said post feet being vertically adjustable so as to allow temporary raising of at least one line of post feet per leg."
"The second point is one which appears to me to be almost entirely one of law. It comes down to this. The plaintiff says that the defendant infringes the claims of this patent by making the scaffolding structure in a collapsed form and exporting it to Korea for erection there. The collapsed form of the structure in this country is a kit of parts, and that kit of parts is, itself, as much a direct infringement of claim 1 of the patent as the fully assembled structure would be.
On the other hand, the defendant says that this is not so. What the claims cover is a full and erected assembly. It says that all the cases under the previous law in relation to kits of parts were cases where not only were the kits made available within the jurisdiction but that they were erected by customers within the jurisdiction so that the kit of parts could be regarded as, effectively, one step in a joint venture between the manufacturer of the kit and the customers who erected it. Both infringed.
Both parties have referred me to domestic cases under the law prior to the Patents Act 1977. Mr Purvis [counsel for the patentee] has also referred me to decisions in Canada, where it is clear the courts have expressed, in strong terms, the view that there is no commercial difference between an erected item and a kit of parts which can be turned into an erected item as far as the issue of infringement goes.
However, it seems to me that although the previous law in this country and the cases in Canada are of interest, they may be misleading for this reason. The 1977 Act, based, as it is, on the European Patent Convention, now provides a definition of infringement which is not derived from the Statute of Monopolies as all our previous law on infringement was, but is based upon an international agreement as to what should and should not constitute a violation of a monopoly obtained by a patent.
It seems to me that my job is not to look at the old law, but to look at what is now the statutory definition of infringement. …
Mr Hamer [counsel for the defendant] says that under section 60(1)(a), the court has to identify, first, what is the invention. It must identify what is the product which is covered by the patent, and then it must be shown that the defendant, within the United Kingdom, has made, disposed of, offered to dispose of, use or import, that product. Here he says that the product as identified in the patent claims is a complete assembly, not a collection of pieces of metalwork which can be erected in another country into the complete assembly. He says, therefore, that his client cannot fall within section 60(1)(a).
In so far as the patent covers a complete assembly, the only time such an assembly will exist, made from hardware derived from the defendant, is when it is erected in Korea. That may be one of the reasons why the plaintiff has applied for an equivalent patent in Korea and, if it is granted, no doubt will use it there. But, in any event, in this country, Mr Hamer's argument is simple. His client has not made the product of the invention because it has not made the assembly, which is what claim 1 covers.
Mr Purvis, on the other hand, runs the following argument. He reminds me of the history of the law in relation to kits of parts in the United Kingdom before the 1977 Act, which he says was the same as that expressed by the Canadian courts, and he says that it makes no commercial sense that the patent monopoly can be avoided by simply making the product in knock-down form and shipping it out to another country. He [argued] that, commercially, the damage done to his client is the same and, when construing section 60(1)(a), some commercial reality should be imported.
I have two problems with that argument. First of all, of course, if the invention is the complete assembly - the structure, so to speak - then the only time that structure is used, and the plaintiffs' contribution exploited, is in Korea. I am not, by any means, convinced of the argument that the whole benefit of the invention (assuming it is one) has been made use of in the United Kingdom.
Secondly, I am wary of the argument that commercial considerations like this should be used to broaden out the scope of section 60(1). During the course of argument, I put to Mr Purvis the following example. Assume that the patent claim is for a piece of furniture, and the defendant makes the furniture in knock-down form, but exports it to another country. Mr Purvis's argument is that would infringe, because, from a commercial point of view, there is no difference between the erected furniture and the furniture in its knock-down form.
I then asked Mr Purvis what would be the position if what was sent abroad was the piece of furniture, but without one piece, for example, one plank of wood which could be easily obtained, without any necessity for careful selection or cutting, in the country of destination. He agreed that, in that case, there could be no infringement because the whole structure was not made available here and it does not come within the provisions of section 60(2) because that refers to making essential means available to somebody who is going to put together an infringing product in the United Kingdom. Yet this example makes no more commercial sense, in the sense that Mr Purvis used it, than treating a complete knock-down kit as non-infringing.
Furthermore, assume a case where one company has branches in England and in France and most of the kit is made in England and the remainder is made in France, and both are sent to Korea. Commercially, there would be no difference between that type of activity and making the whole kit in this country and sending it to Korea.
For these reasons, I am far from happy that looking at this simply as a matter of commercial equivalence is a legitimate approach to the construction of section 60(1)(a).
However, Mr Purvis drew my attention to a decision of Graham J. in Rotocrop International Limited v. Genbourne Limited  F.S.R. 241. That case concerned a collapsible bin for use in making garden compost. Claim 14 was in the following terms: 'A compost bin substantially as described herein and with reference to the accompanying drawings'. The drawings in the patent showed a fully erected bin. The defendants sold the bin in a knock-down form.
Although the judgment perhaps is not in all respects happily worded, it does appear that Graham J. came to the conclusion that a kit of parts was just as much an infringement of a claim to a fully assembled article as was the fully-assembled article itself. For this purpose, he was considering the provisions of the 1977 Act. In particular, he said the following:
'As regards claim 14, the bin claim, the defendants here are not shown to have sold bins other than as a kit of parts with full instructions how to erect. For my part I do not think any practical distinction can be drawn from the point of view of infringement between the sale of an article in parts with full instructions how to put it together, at least where as here putting it together involves no more than the exercise of the practical ability possessed by the ordinary member of the public who may be expected to buy and does buy the article in question. I would draw no distinction here, and I do not think there is anything to the contrary established by the cases cited to me.'
Later on, he says:
It follows in my judgment that the defendants have infringed both claims 6 and 14, the latter directly, since I regard the kit of parts in the circumstances stated to be a 'bin' within the claim, so there is direct infringement.
It appears to me that it is perfectly possible to come to the same conclusion Graham J. did and to dismiss the more literal construction of section 60(1)(a) advanced by Mr Hamer.
Mr Purvis says that in light of Rotocrop, it would be inappropriate to dismiss this action at this stage. He says that it is clearly arguable that the disassembled scaffolding supplied by the defendants is a kit of parts and should be treated as the compost bin was in Rotocrop.
I do not find this an easy issue, but I have come to the conclusion that it would not be appropriate for me to depart from the conclusion arrived at by Graham J. If the more precise and narrower construction of section 60(1)(a) advanced by Mr Hamer is to represent the law, it is better that that conclusion should be reached at a higher level than this, I should add that I was shown no authority from any court in another EPC country touching on this issue."
Foreign case law on infringement by dealings in a kit of parts
"The present legal dispute has been initiated thereby, that respondent also sells its 'Progreß' machines in foreign countries and that in some of these machines retrofitting has taken place; namely, after their delivery to the foreign buyers, in their operation, in collaboration with installers of respondent, the gripper device has been retrofitted into a seam folding device. It is not disputed that the machines of respondents have had or characteristics of the patent in dispute after such a retrofitting.
Plaintiff has claimed that this change had already been prepared on purpose at the operating location of respondent in Bielefeld; respondent were to have prepared the machines delivered to foreign countries in such a way that they could be provided with a seam folding device by simple, technical steps; inherent therein were a partial domestic production of the protected subject matter. Moreover, respondent were to have violated the patent in dispute by offering [machines] for sale domestically, because it had, during the negotiations in Bielefeld, offered to its foreign interested parties to retrofit the machines in the indicated manner during installation in the foreign country; it is said to have consented to provide them with a machine with a seam folding device."
"In actuality the court of appeal especially deals with the case of the delivery of a machine to a company by the name of Örebro (Sweden). On the basis of the taking of evidence the court finds the following: witness J., chairman of the board of management and a member of the supervisory board of this company, appeared in person in September of 1950 at Defendant in Bielefeld for a machine of the type in question. He stated that his company already owned a machine from Plaintiff, built on the basis of the patent in suit and equipped with a folding device, and produced with its paper bags with cross-folded base labels. Since its customers have become accustomed to this design of the bags, the company attached value to acquire machines capable of producing the same bags. Defendant declared its willingness to fulfil this wish expressed by J. Defendant did actually refuse to produce machines with folding device at its operational facility by pointing to Plaintiff's patent protection. It did however offered J. to equip the machine with a folding device by making a change easily to be accomplished and to be carried out in Sweden during the installation, with this change to be included in the price. As a result of this offer, the contract subsequently came about and was implemented."
The Oberlandesgericht (Regional Court of Appeal) found that it was probable that the same thing had occurred on four other occasions.
"As the court of appeal accurately states, the term 'marketing' within the meaning of §6 PatG does not necessarily require that the marketed object is already readily available and that it is in stock in the regional scope of protection of the infringed patent … Although the term 'marketing' means 'keeping for sale' in the real literal sense, it is actually understood as 'putting up for sale', namely 'offering for sale (or purchase)' within the meaning of §6 PatG. Especially with such large and expensive machines like the ones in dispute here, which are usually only produced on order, 'marketing' within the meaning of §6 PatG can already be found in the offering of the immediate production and delivery of a machine by the business of the offerer, which is equipped for this purpose. … Such marketing is patent-infringing, if it is apparent from the offer that the recipient of the offer is to receive the machine from the offerer in a patent-infringing form. If such an offer is made by a business in the patent's regional scope of protection, which intends to produce the machine here in this country and ship it from here abroad, the offer is patent-infringing, even if the machine irs only to be converted abroad by the offering business, or with its collaboration, into a form that corresponds to the patent in suit.
Only such cases, namely in which especially the offerer already offers, during the offer made at home, to undertake the conversion intended abroad into a form that corresponds to the patent in suit, have been captured by the decision of the court of appeal and must be decided here. "
"1. The allegation of having manufactured an infringing temperature measuring device in Germany does concern the First Respondent already because it manufactured a completely functional and usable thermometer, as is illustrated in the diagram reproduced in the facts of the case of the disputed embodiment in the first place. The fact that said measuring device without a front end cap realises all the claim features of the patent subject to temporary injunction according to the wording is without a doubt. The First Respondent is also not exonerated by the fact that it did not market the measuring device in this state (i.e. without an end cap), but rather exclusively with an end cap, which eliminates the infringing function of the device. Because the individual modes of use reserved for the property owner through the patent are independent pursuant to §9 No. 1 German Patent Law, the attempt to approve the manufacturing actions only in light of that particular product in that particular form in which it is supposed to be marketed is already misguided. Manufacturing may indeed be denied if an infringing product is obtained as an interim product that will eventually need further processing during which the infringing state once more becomes irretrievably lost. Nonetheless, these are not the current circumstances. The decision in this case is also not comparable to the type of configuration on which the BGH based its decision 'Air heaters' (Mid 2001, 21). Unlike there, there can be no mention of the fact that the measuring device should ultimately be introduced into the market according to the intention of the First Respondent with the temporarily mounted front end cap (which eliminates the infringing function). Rather the intent is that the thermometer should be marketed in the (infringing) form that it undertakes by installing the new into.
Furthermore the recognised principles are relevant in the manufacture of an unfinished product, the missing part of which is readily available and can be added is just as good as the successive delivery upon agreement of all parts to be assembled (cf. Busse, Patent Law, 5th edition, §9 German Patent Law, margin no. 63; Benkard, Patent Law, 9th edition, §9 German Patent Law, margin no. 11).
Even if currently the temperature measuring device of the First Respondent - contrary to the aforementioned statements - should therefore be regarded as 'unfinished' because it does not have a front end cap, it cannot be disputed that the first respondent not only designed the measuring device in such a way, but rather it also delivers replacement caps that can be mounted in place of the front end caps it delivered. The First Respondent not only manufactured an 'unfinished' product in Germany - in the form of a measuring device without a front end cap - but it also manufactured the end cap, with which the unfinished product can be completed, to form a sellable infringing product. At least this fact in and of itself substantiates the allegation of having manufactured a patent-infringing thermometer in the Federal Republic of Germany.
2. Under the given circumstances, the assumption is further substantiated that the First Respondent offered the patent-infringing thermometers from its principal place of business (and thus in Germany). BGH case precedent (GRUR 1960, 423 – Valve bag with block bottom I) has already decided that a domestic supply offer exists if and when the offer goes so far as to reconstruct a machine abroad (with the vendor) without infringing on the patent in a form that corresponds the patent that can be manufactured domestically by providers in the non-infringing form (also: Benkard, l.c. §9, margin no. 11; Busse l.c. §9 margin no. 133). The underlying case deserves the same event evaluation. That particular measuring device the First Respondent delivers, may not infringe on the patent. The offer from the First Respondent, however, comprises the provision of a replacement front end cap, with which the delivered device can simply be redesigned in an infringing manner. Although the First respondent does not carry out the reconstruction itself, this is without merit from a legal standpoint because the First Respondent instructs its buyers to do so and the front end caps can be replaced with just a few simple moves based on the precautions taken on the measuring device by the First Respondent."
The parties' submissions
i) instructions are provided by Contour for assembly of the Solar Eclipse seat units on the aircraft;
ii) those instructions set out only a single way to assemble the seat units;
iii) following those instructions inevitably results in a seating system within claim 1;
iv) those instructions are sufficiently detailed to show the precise position of every component and their relative positions;
v) Contour either undertakes or partially undertakes the assembly, or at least provides assistance for the assembly by way of supervision or inspection;
vi) the assembly of seat units is designed as a bespoke whole for the specific use of each specific customer, such as Delta;
vii) assembly is within the routine skill of the ordinary engineer;
viii) a number of seat units are assembled together, albeit not on an aircraft, by Contour at an FAI in the UK so that the customer, such as Delta, is able to determine how the units will fit together;
ix) airline seating systems are normally sold as kits; and
x) practical constraints necessitate, or least make it desirable, to sell seating systems as kits.