Virgin Atlantic Airways Ltd v. Zodiac Seats UK Ltd and Delta Air Lines, Inc; The Comptroller General of Patents and the Secretary for State for Business, Innovation and Skills (intervening) [2013] EWCA Civ 1713
Iain Purvis QC and Brian Nicholson were instructed on behalf of Zodiac, and Benet Brandreth was instructed on behalf of Delta, in the Court of Appeal in this last part of the ongoing dispute regarding airline seats. Virgin was appealing against the High Court’s finding that its main patent (EP’908 – the subject of the previous appeal to the Supreme Court) was not infringed following amendment before the EPO. Zodiac was cross-appealing on the validity of a divisional patent (EP’734). Both appeals were dismissed: the 908 Patent (as amended) had never been infringed by Zodiac; the 734 Patent was valid. Interestingly, a few weeks later, the 734 Patent was declared invalid by the EPO. Delta’s appeal concerning the non-enforcebility of the 908 Patent (due to a procedural deficiency in the application process) was also dismissed; the UK Courts have no jurisdiction to refuse to enforce a European Patent that was granted in error by the EPO.