In a matter closely tracked by patent attorneys and the aviation sector for some years now, the Chennai Patent Office last week finally issued its decision on the opposition filed by Jet Airways and the UK-based Contour Airspace Ltd in favour of the patent applicant, i.e., Virgin Atlantic Airways.You can download and read the 128-page decision here. This case, as you will gather, involves a complex series of events, including the filing of two oppositions, and a parallel re-examination proceeding. The patent application itself related to passenger seats for use in aircraft, among other things.
The patent office eventually decided in favour of Virgin, with a catchphrase of an observation that the invention involved “concept level rethinking”. (I have never encountered this phrase in patent parlance before, but I am confident it will be enthusiastically taken up by patent attorneys across the country in future defences of patentability.)
While we have not as yet had an opportunity to study the decision in detail, by way of a quick snapshot of the timeline and issues involved:
- Application: Virgin filed a patent application in India via the National Phase in 2004 for a passenger seat and related claims.
- Opposition: In July 2007, by when the application came up for examination, Jet filed a pre-grant opposition (under section 25(1) of the Patents Act) on grounds that Virgin’s application was anticipated and obvious.
- Amendment: Virgin also amended its application in the interim, in response to the First Examination Report issued by the Patent Office. This came up as an issue, in context of the closing phrase of section 25(1), i.e., “…but on no other ground and the Controller shall, if requested by such person for being heard, hear him and dispose of such representation…”
- The semantics of claim construction are tested here, pivoting around equivalence (or difference) between the terms “characterized by (in that)” and “wherein”. This debate (in the decision) also tests the quality of the manual of patent and procedure.
- A new citation was also introduced mid-way in the course of the hearings, requiring the IPO to adjudicate upon whether this was introduced in good faith or otherwise.
- The first pre-grant opposition (filed by Jet) was rejected, and the patent application was sent for re-examination under section 59(1), dealing with the amendment of application or specification.
- Meanwhile, the manual of patent office practice and procedure was finalised, and thereafter, in October 2010, a second pre-grant opposition was filed by Contour Airspace on grounds of anticipation and obviousness.
- A postal delay in the receipt of an “expert report” submitted by the second opponent invited a debate and an adjournment.
- The final of six hearings from March 2010 onwards was held on 12 October 2011, and the decision was signed dated 24 November 2011. Procedurally, it took 4 years and 4 months to come to this decision.
- Added subsequently: Over at IPKAT, corresponding UK decisions relating to the same family of patents were covered some months ago, which post you can read here. The decision itself, i.e., the Virgin Airlines’ seat litigation ([2011] EWCA Civ 163 covering EP (UK) 1,495,908) can be read here. As Frequently Anon in the comments section points out, the UK decision has likely also played some part in the Indian decision (since both seem to reach the same conclusion). (Thanks FA for your pointer – I acknowledge I should have linked to this in my original posting).
More on the decision soon.
Dear Sumathi:
The IPKAT blog had covered the corresponding UK decisions.
The Virgin Airlines’ seat litigation.
[2011] EWCA Civ 163 covering EP (UK) 1,495,908.
Discussed at
I think that the UK decision also played some part in the Indian decision (since both seem to reach the same conclusion).
Regards,
Freq. Anon.
Sincere regards,
SKR
Thanks FA – changes made in the post already. I should have written this in earlier, but oh well. 🙂
Apart from the decision per se, what is interesting in this decision is the multiplicity of fonts, line spacing, and grammar usage styles.. gives one reason to ponder..Is this a trend in the Patent Office – to write a document with multiple fonts and grammar styles (I can count at least three different fonts in this case)
Always Anon.
(with apologies to Freq.Anon)
Multiple fonts, inconsistent use of grammar and lack of general aesthetics in decisions written by Patent Controllers is nothing new. Recently the Office has been provided with Adobe acrobat procured at huge cost. A point to be noted is that this version of Acrobat has the ability to convert pdf to text. Is this is an official endorsement of “cut & paste” policies within the patent office.
Sometimes Anon.
(With apologies to “learned” Freq. Anon and Always Anon)
@ Always Anon.
I have seen what you noticed and can give you the straight answer:
IPO copy-pastes a lot of the materials that the two parties submits. In fact, the Controllers on opposition hearing will insist on the submissions from both parties in E form.
Even then, the Controllers are not able to summarize the arguments properly or many times – skip complete arguments.
Regards,
Freq. Anon.
The term “concept level rethinking” would have been a part of the submission during opposition proceedings by the parties involved. One cant expect controllers in Indian patent office to come up with original terms like these. As others have pointed out in aforementioned comments, copy paste jobs are becoming the rule rather than the exception in the patent office. The only objective appears to be to increase the number of pages of the decision. We are yet to come across short and lucid decisions by controllers. This reflects rather badly on the real decision making and communication skills of controllers.
Thank you both Freq. Anon and Sometimes Anon.
A review of the decisions of the IPO does at times make on wonder whether, not merely technical qualifications, but also a legal qualification should be a must prior to elevation to a quasi-judicial post.
The second question that does occur is w.r.t. the variations in decisions on practically the same issue – and in a very short time span – and in the same branch office – and at times by the same hearing officer! Any thoughts?
Always.Anon