English court cannot examine validity of grant by European Patent Office

20/12/13

The Court of Appeal today upheld the decision of Floyd J that it was not open to the English courts to examine the validity of a patent for airline seats granted to Virgin Atlantic by the European Patent Office. 

A group of airlines defending infringement proceedings by Virgin pleaded the invalidity of Virgin’s patent on the ground that Virgin had expressly indicated on the application form that it did not wish to designate the UK as a state to which its patent was to apply. That claim had been rejected by the Examining Division of the European Patent Office, but because formal defects were not among the points that could be taken in opposition proceedings before the Opposition Division, the defendant airlines had not been afforded any hearing on the question by the European Patent Office.

Accepting the arguments advanced by Virgin and by the Comptroller General of Patents and the Secretary of State for Business, Innovation and Skills (intervening), the Court of Appeal held that grants by the European Patent Office had automatic effect in domestic law; that no legal act on the part of the domestic authorities was required to implement them in domestic law; and that accordingly neither the grant of the patent nor the Examining Division’s subsequent confirmation of the validity of that grant engaged the jurisdiction of the United Kingdom for the purposes of Article 1 ECHR.

The Court went on to hold that, even if this were wrong, Article 6 ECHR was not engaged on the facts because neither the European Patents Convention nor the Patents Act 1977 permitted  third parties to challenge the validity of a patent on the ground that the application was formally defective; accordingly the defendant airlines had no substantive civil right to challenge the patent on that ground so as to engage the procedural guarantees of Article 6.

At the same time, the Court of Appeal dismissed appeals by Virgin against the findings of Floyd J that the patent was not infringed.

The judgment is here.