A recent decision from the UK Supreme Court (formerly the House of Lords) has clarified that the owner of a patent should not be able to pursue another for damages for infringement if it is later found that the patent was invalid, or should not have been granted.
In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, the patent holder, Virgin won an infringement action for an airline seating arrangement. A UK court had found seats made by Zodiac infringed a European (UK) Patent owned by Virgin.
Virgin sought the damages (of more than £49 million) from Zodiac for the infringement. The decision and damages were appealed.
In the meantime, the European patent at issue had been the subject of post grant opposition proceedings and had been amended. This meant the European (UK) Patent did not exist in the form said to have been infringed!
Should Zodiac pay damages for the infringement? The case law in this area is that a past judgement should be preserved and maintained even if the patent at issue was subsequently revoked or amended.
The Supreme Court recognised the unfairness here, said that businesses ‘wanted certainty’ and ordered that following an amendment or revocation it was as if the patent in its original form never existed and no damages were payable.
This seems to be a win for common sense.