Richard Meade QC and Henry Ward recently appeared with Jonathan Crow QC in the Supreme Court in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46. The appeal concerned the principle from Poulton v Adjustable Cover & Boiler Block Co [1908] 2 Ch. 430, Coflexip SA v Stolt Offshore MS Ltd [2004] EWCA Civ 213, [2004] F.S.R. 34 and Unilin Beheer BV v Berry Floor NV [2007] EWCA Civ 364, [2008] 1 All E.R. 156 (“the Unilin Principle”), that where a patent had been held valid, the patentee was entitled to damages for infringement by the parties to the validity decision, even if the patent was later held to be invalid in other proceedings. In the earlier Court of Appeal decision, reversing the first instance decision, Virgin Atlantic Airways Limited’s patent for aircraft seats had been held valid and infringed by Zodiac Seats UK Limited’s product. However the patent was later challenged in the EPO, and only held valid on significantly amended claims.
Lord Sumption and Lord Neuberger, each giving judgements with which the other Lords agreed, considered that the cases deciding and applying the Unilin Principle were wrongly decided. Although the alleged infringer was potentially bound by cause of action estoppel and/or issue estoppel concerning the invalidity and infringement of the patent over the prior art, and bound by Henderson v Henderson abuse of process regarding other prior art that it could potentially raise, they were not estopped from relying upon the fact that the patent had been revoked, since that fact was not available at the time of the first decision.
Accordingly the Supreme Court held that Zodiac Seats UK Limited were entitled to rely upon the fact of the patent’s amendment in the EPO on the damages inquiry.