In a recent case at the Appeal Court in England, once again about aircraft seats, it was confirmed that if a defendant was found to have infringed a valid patent, it would have to pay assessed damages, even if that particular patent was subsequently revoked.
In late 2009, the Court of Appeal held that European patent (UK) 1495908 of Virgin was both valid and infringed by aircraft seats of Contour (as Premium Aircraft Interiors are known). Subsequently, the Court of Appeal also refused to stay making an order because of proceedings at the European Patent Office. Therefore Contour were prevented, by an injunction, from supplying and fitting aircraft seats, subject to various conditions, and an inquiry as to the damages they had to pay Virgin for past infringements was commenced.
Subsequently, in opposition proceedings at the European Patent Office, the patent was amended and Virgin accepted that it could not rely on the original injunction to prevent further acts of infringement in relation to the amended claims. In Virgin v Premium Aircraft [2011] EWCA Civ 163 Contour sought an order that the inquiry as to damages be set aside. They hoped, by this means to avoid a liability for past sales estimated to be in excess of £49 million. Giving the judgement of the English Court of Appeal, Patten LJ noted:
"This court held in Unilin Beheer BV v Berry Floor NV [2007] EWHC Civ 364; [2007] FSR 625 that where the issues of infringement and validity had been finally determined in our courts the matter is res judicata as between the parties. If the patent is subsequently revoked in proceedings in the EPO, that affects the future, in that any injunction restraining infringement for the patent would lapse when the patent is revoked. But the entitlement to damages remains because it is res judicata in our courts as between the parties."
Patten LJ dismissed Contour's application seeking to discharge the order for an inquiry as to damages. He noted that the inquiry as to damages was not an attempt to enforce a new claim but quantified the amounts payable under an already perfected judgement.
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