Comforted by the seat of justice – No going behind the EPO's decision to grant a patent, by Adam Cooke and Claire Bennett, DLA Piper

The Court of Appeal has today ruled in Virgin Atlantic Airways v Jet Airlines (India) & Zodiac Seats UK and others that the English courts cannot go behind the European Patent Office's ("EPO's") decision to grant a European Patent.

This is part of the long-running patent dispute concerning lie-flat business class seats for airlines, in relation to a Virgin Atlantic Airways' innovation which enables airlines to make more efficient use of the limited space on planes.

This decision will be a great relief to patent holders, as it means they can be confident that once the EPO has granted the patent, the patent cannot be attacked in the English Court on the basis of any procedural errors made in the grant process (such as a late payment of designation fees). The possibility of such attacks would have increased the hurdles that patent owners have to overcome in enforcing their patents, and the cost of so doing.

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This is in contrast to a decision of the UK Intellectual Property Office to grant a UK national patent where, in some circumstances, it may be possible to challenge the decision by way of a judicial review. 

This decision does not affect the ability for a patent to be challenged on the specific grounds set out in the English Patents Act 1997, and in particular s72 which provides that a patent can be challenged on grounds including that the invention is not a patentable invention.

The Authors of this contribution represented the patent owner.

Background
The defendants alleged that procedural errors had been made during the grant process for VAA's European patent number EP 1 496 908, and in particular that the UK had not been correctly designated as a state in which VAA wanted the European Patent to be granted. The European Patent Office had previously considered this complaint and rejected it, considering it was not necessary to correct the grant of the patent for the UK. However, in the English Court, the defendants pleaded as part of their defence that the patent was a nullity insofar as it purported to designate the UK as part of the grant. The High Court rejected this defence.

Legal Issues
In the Court of Appeal, the defendants based their arguments on the European Convention of Human Rights (ECHR). Article 1 of the ECHR requires that the contracting parties "shall secure to everyone within their jurisdiction the rights and freedoms" of the convention. The first question was whether acts or decisions of the EPO fell within the "jurisdiction" of the UK for Convention purposes. The second question was, if the convention was engaged, if Article 6 of the Convention (the right to a fair trial) conferred on the defendants a substantive right to challenge the patent by reference to the grant process.

First question
On the first question the Court of Appeal held that the delegation of power and functions to an international body such as the EPO which had independent legal status was not inconsistent with Article 1, and that the mere fact that the Patents Act 1977 recognised the validity and effect of the European Patent under domestic law was not sufficient to create a "jurisdictional" link. The Court accordingly held that the English courts have no general power to review the validity of grant of patents by the EPO on grounds not specified in the European Patent Convention. The Court further considered that to allow such a power would be to undermine the whole system for the grant of European patents.

Second Question
The Court of Appeal then considered whether, if it was wrong and it had jurisdiction, the Article 6 rights of the defendants were engaged. The established position of the English Courts is that Article 6 does not in itself create powers of adjudication or substantive rights which the parties do not already enjoy under domestic law. The Court of Appeal held that the only substantive rights to challenge the grant of a patent under domestic law was under s72 and 74 of the Patents Act. Thus the defendants did not have any substantive rights to challenge the patent on the issue at hand, and the only issue which the defendants were entitled to have heard, was the issue of whether the matter was justiciable at all. The judge had tried this issue in accordance with Article 6. The "right to trade in the UK free of the patent unless it was validly granted", which the defendants alleged they had, did not assist as the patent was validly granted – the defendants had no admissible right to challenge it on the grounds they did. Indeed, it was inherent in the scheme of the European Patent Convention that there would be some errors in the ground process that would not be correctable at the suit of third party.

Concluding remarks
On the other patent infringement issues, the Court of Appeal ruled that VAA's patent EP 2 289 734 was both valid and infringed by Zodiac's Solar Eclipse Seats, but that VAA's original patent, EP 1 496 908, which the Court of Appeal had considered to be valid in its original form but the European Patent Office had subsequently required VAA to amend, was no longer infringed by Zodiac's Solar Eclipse seats as a result of the amendments made. As a result of the insurmountable differences in approach to construction between, and parallel jurisdiction of, the English Court and the European Patent Office, VAA will not recover damages for the historic infringement. However, VAA retains the more important protection of an injunction, which prevents Zodiac manufacturing or selling the Solar Eclipse seat in the UK.

Read the decesion (in English) here.