Trouble now in Indian skies – Jet opposes Virgin’s patent on seat design

Jet Airways, after a good financial earning report, was on the business front pages last week, but there was also some patent trouble brewing in the background.

Mint (on 25^th Jan) carried a report on a pre-grant opposition filed by Jet Airways against grant of a patent on herringbone seat (used in business class) by Virgin Atlantic covered by the Indian application 500/CHENP/2004 (Application number details was obtained from source here)

This opposition in India is another chapter in ongoing patent dispute which is in its final stages in the UK and EP.

The EP application had graduated into a patent EP1495908. The EP patent was opposed by Contour (along with Cathay Pacific & Airbus), but was unsuccessful; subsequently an appeal filed against the opposition decision is pending at the Board of appeal at the EPO. The file history of the EP patent can be found here along with the documents filed during the proceedings.

In the UK, the EP patent was used in an infringment suit against Contour. Virgin was unsuccessful at the first instance, where in Jan’09, Justice Lewison [2009] EWHC 26 (Pat) held Virgin’s patent valid but not infringed by Contour. Virgin appealed against this decision, and this time found luck. The Court of Appeal, on Oct’09, overturned the previous decision and ruled [2009] EWCA Civ 1062 in favor of Virgin, holding the Patent to be valid and infringed. Premier (Contour) was earlier involved in designing the seats with Virgin and had also supplied the allegedly infringing seats to other airlines including Jet Airways.

Reports on UK proceedings can be found in IPKat here and here, and detailed analysis at JIPLP here .

As a counter to the Indian opposition, and with a shot in the arm by a favorable decision in the UK, mint on 26^th Jan reported that Virgin has filed an infringement suit against Jet Airways in the UK.

The pre-grant opposition to the Indian Patent application is pending at the Chennai Patent Office and is presently at hearing stage, which was postponed to February. Surprisingly, Mint states that adjournment was sought by Virgin asking for time to reply, which may not be the case, as all such reply must be filed well before entering into the hearing stage.

The main grounds of opposition raised by Jet through their attorney Mr. LaxmiKumaran is the ‘design and technology has been in the public domain’ and as per Mr. Basheer ‘can be disqualified due to lack of novelty’.

Unfortunately, we could not find the exact document(s) that were relied upon (sorry no online file history available in India!), but we hope that there is something new to those relied by Contour in EP and UK, if Jet hopes to give any worthwhile challenge to destroy the novelty, especially since the novelty requirement is the same, derived from the UK Act and the patent was already held valid (twice) by the UK courts.

Though at present the visibility seems to be low, the skies look cloudy and going tough for Jet Airways, which if unsuccessful, will incur huge loss (money and time), and subsequent patent infringement suits if Virgin is successful in obtaining a patent in India.

With two big players in the ring with lot at stake (including pride), whatever the outcome, it is sure to be appealed and also with infringement suit also on cards, this case looks like one which will not die down anytime soon. We just hope that at the end of it all, we are left with some good jurisprudence to rely upon.