Patent attorneys become part of the skilled team
In a recent UK Court of Appeal decision, the subject of the litigation between Virgin Atlantic Airways Ltd and Premium Aircraft Interiors Ltd was Virgin’s Upper Class airline seat. These seats are able to flip over so that the back of the seat forms a flat bed. In the UK High Court, Virgin’s patent had been found to be valid but not infringed by Premium’s seat, which did not flip over. However, this decision was partly overturned by the Court of Appeal, which found that the patent was valid and infringed.
Virgin argued that the invention protected by its patent was not specifically related to the flip over nature of the seat, but instead to the feature that the seat extended into a particular space created by a herringbone pattern in the plane. This feature was found to be present in Premium’s seat.
This case brought up several points on how the patent scope should be interpreted by the notional “skilled man” or “skilled team”. In particular, the decision strongly indicated that the skilled team would not just be interpreting the technical content of the patent as a published document but would also be aware of the nuances of both patent drafting conventions and patent prosecution.
The UK Court of Appeal decided that a skilled team would obtain advice from a patent attorney when reviewing a patent. Therefore the skilled team would be aware of the practice of filing divisional patent applications and the resultant split in coverage of the subject matter. This meant that the interpretation of the patent could be influenced by the awareness that certain aspects of the subject matter mentioned in the patent were specifically protected in different patents within the chain of parent and divisional applications.
The question of how a skilled team would be influenced by the use of a two-part claim
form was also discussed. A two-part claim has all the features that are part of the prior
art defined first, followed by the new feature or combination of features in the second,
characterising, portion of the claim. It was decided that the skilled team would be aware
of this convention and would be strongly influenced by this when it interpreted the
patent. Equally, the inclusion of reference numerals would not influence the skilled team
when determining the breadth of protection; such numerals are not intended under
European practice to be limiting.
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