Araxxe wields the axe

Never put all your eggs in the same basket” is probably a truism in many contexts. Including the one of patent rights.

Case in point: Araxxe, a French company, owns European patent No. EP 2087720. The patent gets opposed, gets killed by the opposition division of the EPO, and does not get resurrected by the Board of appeal. But it turns out that Araxxe had another egg in its basket, namely French national patent No. FR 2908572 – originating from the priority application. And the Paris Tribunal de grande instance (TGI) held that the patent was valid and infringed.

Let’s take a few steps back to look more precisely at what happened.

The French patent FR’572 was granted in March 2009. A couple of months later, Araxxe sent a warning letter to the Belgian company Meucci Solutions. Since the exchanges between the two firms did not lead to a resolution, Araxxe filed a complaint in front of the Paris TGI in December 2009. At that time, the European application claiming priority from FR’572 was still pending at the EPO. This led the TGI to issue a stay of proceedings in May 2011. Such a stay is ordered as of right, since the French part of the European patent substitutes for the French patent when it is definitely granted. By “definitely” is meant that a possible opposition should be taken into account.

In this case, Meucci Solutions (later renamed Sigos), did file an opposition against EP’720 after grant, in 2013. The opposition division revoked the patent, and the Board of appeal confirmed this revocation in November 2016 (case T1645/15).

Araxxe could have withdrawn the French designation of the European application in order to try to avoid such a long stay of proceedings. Indeed, the European application as filed contained the same claims as the French patent as granted. Therefore, it was extremely unlikely that the European patent would end up having a broader scope of protection than the French patent. But they did not do so.

Thus, the case resumed after the termination of the EP proceedings, with no EP-FR substitution having taken place due to the demise of the European patent.

Interestingly, Araxxe asserted only claim 8 of the French patent.

One basket, different eggs.

Here is claim 1:

A method for generating scheduled communication operations over one or more communication networks from an information system and verifying their correct invoicing, comprising:
– allocating resources within said information system for a call campaign over a predetermined period of time,
– managing communication equipment in shared time, 
– executing communication or transaction operations, in response to execution orders received from a call scheduling site, 
– collecting invoicing data produced by the operator, and
– automatic data correlation allowing anomaly identification,
characterized in that the method is simultaneously implemented for a plurality of communication operators, the allocated resources being shared, each communication operator being able to issue communication or transaction operation execution orders.

Here is now claim 8:

Application of the method of any one of claims 1 to 6, for the purpose of detecting traffic bypass operations by third parties, said method implementing a comparison of theoretically expected caller identifiers with identifiers actually recorded by the call receiving robot. 

The defendant not only challenged the validity of claim 8, but also that of claim 1, since claim 8 makes reference to claim 1. But the court refused to consider the attack against claim 1, because claim 8 is independent from claim 1, they said.

Under French practice, invalidity counterclaims are in principle only examined when they relate to the claims alleged to be infringed – regrettably so, I would say. This part of the decision is thus relatively unsurprising. As to whether claim 8 can truly be termed an independent claim, I have some doubts. Any dependent claim could actually be termed independent, in that case. Not that this categorization really matters in the end anyway.

As a result, 17 pages of the defendant’s written submissions on invalidity were disregarded. Also, the defendant’s arguments that the patentee had “agreed” that its claims were invalid since they had been modified in front of the EPO, did not fly. The court stated that:

Amending claims during examination or opposition proceedings, in view of remarks made in search reports or observations from the patent offices, is a usual and common practice which cannot be considered as an agreement by the applicant that its right is invalid. 

That is a relief for all patent attorneys I guess.

The remaining validity points to be addressed were inventive step and sufficiency of disclosure.

As an important note, EP’720 was revoked for extension of subject-matter. But the claims of the European patent as granted were different from those of the French patent. Most importantly, the French patent claims were identical to those of the European application as filed. As a result, there was no way the objections entertained by the EPO could apply similarly to the French patent.

Concerning inventive step, the court noted that the claims of the European application were initially held to be obvious during examination. But then the patent was granted, and the opposition division viewed the granted claims as inventive in the preliminary opinion annexed to the summons to oral proceedings. I would say that this is largely irrelevant, again because the European claims as granted were different. Anyhow, the court then looked at the prior art relied upon by the defendant and was not able to find any lack of obviousness.

Concerning sufficiency of disclosure, things unfortunately got somewhat murky in the judgment.

The defendant argued that the European claims had to be restricted to recite a “plurality of robots” – which led to the extension of subject-matter trap; and that this was an essential feature without which the invention could not be implemented. The court replied that claim 8 refers to claim 1, which recites “a plurality of robots“, so that there is no issue. Except that I cannot find this phrase in claim 1. Maybe another claim feature was considered as synonymous or equivalent, but the court did not provide any detailed explanation.

It gets worse at the next sentence, when the court remarked that the European patent was granted anyway. This overlooks the defendant’s whole point, which was that the European claims had to be modified in order to be overcome a serious objection.

And it gets more than worse (I would go as far as saying “worserer”) in the following sentence:

The later revocation of this European patent does not have any impact on the validity of the French patent since said revocation was based on a ground which is specific to the EPC (extension of subject-matter), which has no equivalent in French law. 

Readers will be excused if they have fallen from their seats at this point. Extension of subject-matter, of course, has nothing to do with insufficiency of disclosure, and both are fine grounds of nullity under French law.

I am not saying that the insufficiency attack was very serious, or that the court’s decision to uphold the patent was erroneous – I have no personal opinion at this point. But some parts of the judgment seem to have been drafted too hastily. This is most unfortunate at a time when there is a perception of global increase in the quality of French judgments in patent matters.

In the rest of the decision, Sigos’ challenge against the infringement seizure at a data center owned by a third party failed. As did their challenge against a bailiff report on a website dated December 2009 but filed in court only in November 2017, as a reaction to Sigos’ argumentation.

The court then turned to the analysis of infringement. I will not go into a feature by feature analysis, as the main interesting point in my view was the issue of territoriality. Indeed, Sigos argued that it performed most of its activities abroad.

The court replied:

The infringement seizure report, but also the bailiff internet report and the screenshots prove the use or the offer to use of an allegedly infringing process, by Sigos, in France. Therefore, it cannot be denied that the alleged harm takes place in France. It is irrelevant whether the means to control and handle the supposedly involved robots are in Belgium, where Sigos states its global platform […] and its main assets are located, or whether the correlation operations are performed abroad, since it appears […] that they are active in France with the main French phone companies. 

If my understanding of the above paragraph is correct, the court found it irrelevant that part of the steps of the claimed method may be implemented abroad. In that case, this would be a major departure from the traditional view that the use or purported use of a process has to be implemented in France (period) in order to be infringing.

As a consequence, the TGI issued an injunction against Sigos and awarded damages amounting to 378,000 euros and attorney’s fees amounting to 50,000 euros to Araxxe.

I don’t know if an appeal is pending or not, but some points in the decision would deserve to be further clarified.

At any rate, and going back to my initial comments at the beginning of this post, it is always useful for a right holder to have several different patents or applications in its basket especially for important cases, and this will certainly remain true even if/when the UPC comes into force.


CASE REFERENCE: Tribunal de grande instance de Paris, 3ème chambre, 3ème section, February 1, 2019, Araxxe SAS v. Sigos NV, RG No. 15/15784.

Red tape on a dyesheet

Let’s start with the dyesheet first – the red tape part of the title will become self-explanatory only at the end of this post I am afraid.

European patent No. EP 2035233 is co-owned by a French company, Evolis SA, and a U.S. company, Illinois Tool Works Inc. The patent is entitled Thermal Transfer Dyesheet and Method of Manufacture. The corresponding Korean patent was asserted against a local competitor, Digital Printing Solution. This action was dismissed by the Korean court in April 2016.

In the meantime, in November 2015, the Korean company presented some of its products in an international trade show in Villepinte – just one stop before CDG airport, for those familiar with RER line B… The patent proprietors obtained a court order so as to perform an infringement seizure at the professional fair. A few weeks later, they filed their complaint for infringement of the EP’233 patent.

Today, I will skip the validity part of the judgment on the merits issued by the Paris Tribunal de grande instance (TGI). Suffice it to say that the defendant’s nullity objections were rejected.

The infringement part of the judgment, on the other hand, contains a couple of interesting points.

First, the defendant challenged the validity of the infringement seizure report.

For the most part, this challenge failed, except on one aspect. As a reminder, the report is drafted by a bailiff who investigates on behalf of the patent proprietors, according to the court order which precisely sets out his or her mission and the limits thereof.

During the seizure, it turned out that the bailiff was unable to find any pricing, invoicing or ordering information in relation with the products at stake. This was established in the report – and not found to be objectionable by the court. However, the court did take offense at one sentence in the report, per which the defendant’s representative present at the trade show did not know the amounts of the allegedly infringing dyesheet that were produced “despite his status of CEO of the company Digital Printing Solution”.

The court held that the bailiff “should limit himself to material observations without issuing an opinion or taking an active part which may orient the outcome of the operation”. In other terms, the above remark in the report was held subjective and inappropriate.

This is an interesting reminder that the seizure team should remain as neutral and impartial as possible – despite the fact that they act at the patentee’s request.

However, in this case the patent proprietors did not suffer any serious consequence as only the remark at stake was held void by the court, but the rest of the report was not affected.

The second interesting point relates to the definition of acts of infringement of a product claim in article L. 613-3 a) Code de la propriété intellectuelle:

Making, offering, putting on the market, using, importing, exporting, transshipping or detaining for the above purposes the product which is the subject-matter of the patent.

There was a discussion as to whether the presence of some allegedly infringing products on the trade show amounted to an act of importation or not. The court answered yes, because an importation according to the above provision “is realized due to the sole introduction of the goods at stake on the territory on which protection is claimed”. Thus, it is irrelevant whether the introduction aims at using, offering, putting the goods on the market or not – unlike an act of mere detention of goods.

Importation can take any form and be carried out with any possible vehicle.

In fact, the formulation of article L. 613-3 a) changed in March 2014. The prior version read:

Making, offering, putting on the market, using or importing or detaining for the above purposes the product which is the subject-matter of the patent.

According to the court, importation acts used to follow a similar rule as detention acts, namely they used to require a certain purpose in order to be acts of infringement – but this is no longer the case since the 2014 reform.

This explanation in the judgment is notable because, although the same interpretation of the pre-2014 statute was made by some authors, such as professor Jérôme Passa in his book Droit de la propriété industrielle, to the best of my knowledge it was not universally shared. In fact, the pre-2014 paragraph was drafted in a somewhat ambiguous manner. That said, whether the 2014 reform merely clarified the rule applicable to importation acts or whether it actually changed the rule will anyway become less and less relevant as there are fewer and fewer pre-2014 importation acts involved in litigation over time.

In passing, the court also held that the presence of commercial documentation in the defendant’s booth amounted to an offer on the French territory, even though this documentation was in English, as French professionals in this sector usually speak English.

So far so good for Evolis and Illinois Tool Works, but the French-American alliance stumbled on the finish line, i.e. they failed to prove that the products at stake implemented the technical features claimed in EP’233.

The infringement seizure report itself did not contain any meaningful analysis of the products at stake. This is not surprising: in many cases, it is simply impossible to analyze whether claimed features are present or not just based on an external inspection of the products or on available documentation.

So the bailiff seized some samples; and in July 2017, another bailiff’s report was drawn up, when the samples were analyzed in Evolis’ premises. But this report was not taken into account by the court:

[…] These operations were made in Evolis’ premises, under its full supervision, in the presence of its CTO and using measuring tools the settings of which were not checked. Besides, the method used and the measurements made were not systematically explained, and notably it is not mentioned why the light adjustment is not the same for examining Evolis’ product and the allegedly infringing one.

In the absence of any other analysis evidence on file, these observations made without any other technical and logistic assistance than that provided by the claimants themselves do not make it possible for the court to appraise whether the [seized products] implement the features of claims 1 and 4 to 7 of [EP’233].

Readers will note that the defendant did apparently not offer any counter-experiments.

However, raising some very broad and general criticisms was good enough for the court.

Clearly, when it comes to an experimental demonstration of infringement, the doubt – any doubt, even a slight one – systematically benefits the defendant.

Or, to put it otherwise, French judges are extremely reluctant to take into account any experimental report made on behalf of one party.

For another example commented on this blog, see here.

This approach is certainly in the interest of fairness for the defendant, but one can wonder whether it is not excessively strict, as it puts the parties in a very asymmetrical situation. Namely, the plaintiff files experimental data, and the defendant can simply raise doubts regarding this data, without providing data of its own to prove that these doubts have merit.

Anyway, what the judges would certainly have preferred in this case is a request by the plaintiffs for the appointment of an expert by the court in order to perform the tests in a neutral environment. Or to put it otherwise: there was not enough red tape on these dyesheets. But the red tape approach is much more complex and cumbersome on a procedural standpoint – and more costly of course.


CASE REFERENCE: Tribunal de grande instance de Paris, 3ème chambre 2ème section, December 14, 2018, Evolis SA & Illinois Tool Works Inc. V. Digital Printing Solution Co. Ltd., RG No. 15/18744.

The bell always rings twice

This blog has now been around long enough for the same case to make it to a post several times, when new developments come up.

The present post is thus a sequel to my earlier comments on the litigation between Airbus Helicopters and Bell Helicopter Textron Inc.

As a reminder, the Paris Cour d’appel found Bell guilty of infringement of French patent No. FR 2749561 directed to a landing gear with skids.

Bell filed an appeal on points of law, and the Cour de cassation has now issued its judgment rejecting the appeal. Many different legal points were raised by Bell, but certainly the most interesting one relates to the finding of infringement concerning the so-called first version of helicopter Bell 429. This first version was a prototype, which was:

  • included in Bell’s catalogue;
  • shown in September 2005, which was reported on the website of a helicopter enthusiast (although Bell argued that this was a confidential presentation);
  • and put up on the website of Rotor & Aircraft, Bell’s distributor in France.

Bell’s defense was that this first version of the helicopter was not yet approved for sale. But the appeal judges noted that:

Offering for sale extends to any material operation aiming at putting a product in contact with potential customers, at preparing a commercial launch, even if said product, which in the present case was not yet approved, could not be marketed.

A helicopter prototype at a very early stage.

The “prototype” defense was raised again by Bell in front of the Cour de cassation, according to the seven following points.

First:

A mere prototype [was presented] in a private context and within a narrow circle of specialists; the prototype had not yet flown, and was later subjected to several modifications; in the absence of any prior certification, it could not be marketed; [this] cannot correspond to putting on the market nor even to a preparatory act for such putting on the market.

As a result, said Bell, the court breached the statute, by deciding that an offer for sale could relate to a product which could not be marketed.

The cour de cassation replied that the standard applied by the Cour d’appel was the right one, in particular because “the presentation of the product as a prototype can divert part of the clients of the patented product“. 

Second, the presentation of the first version of the landing gear was quickly followed by the marketing of the second version of the gear. Also, the certification of the second version was based on tests performed on the first version. Thus, the presentation was at best a preparation for the sale of the second version, and not an offer for sale of the first version.

The supreme court judges disagreed. In fact, the Cour d’appel had held that Bell intended to market the first version of the landing gear at the time it was presented.

Third, Bell blamed the appeal judges for relying on acts committed outside of France: an offer for sale abroad in a catalogue, and presentations in exhibitions in the U.S. and Canada. They said that only acts committed in France could possibly constitute an infringement.

However, for the Cour de cassation, the Cour d’appel did not hold any acts committed abroad as acts of infringement. They simply noted that the presentation in France had been preceded by offers for sale abroad. As I understand it, it is therefore OK to refer to acts committed abroad in order to characterize the overall context.

Fourth, Bell submitted that the report of the first version on a website owned by a helicopter enthusiast was an act committed in a private and non-commercial context – which is an exception to infringement.

Fifth, regarding the presentation of the helicopter on Rotor & Aircraft’s website, Bell argued that the landing gear could not be identified on the pictures appearing on the website.

Sixth, there was no evidence of the presentation of the first version in the Paris air show, since the bailiff’s report did not precisely describe the landing gear.

The Cour de cassation did not provide a detailed answer and simply referred to the appeal judges’ discretionary power for appraising the available evidence.

Seventh, the Cour d’appel refused to acknowledge that the acts committed related to the statutory experimental exception, because no test and no act of research were performed when the first version of the landing gear was presented. However, Bell said, the sole use of the landing gear could by itself aim at studying its behavior and therefore relate to the experimental exception.

But the cassation judges decided that the absence of evidence of any experimental testing was sufficient to reject the experimental exception.

Many other grounds were raised, regarding the validity of the patent, the validity of the infringement seizure report and the infringement by equivalence of the second version of the landing gear. They were all discarded.

One rather enjoyable part of the discussion relates to the way the bailiff drafted the infringement seizure report. The bailiff used in some instances the word “we” instead of “I“, so that it could not be determined, Bell said, what the bailiff had actually personally done or witnessed. The court replied that the use of the pronoun “we” was commonplace and could not be relied on to deduce that the bailiff had not carried out the seizure himself.

I wonder whether the pronoun “we” is that commonly used to designate a single individual. It is rather a specificity shared mainly by royalties and bailiffs, I would say.

Anyway, the take-away message from this important ruling remains that the presentation of a prototype can be considered as an offer for sale and thus an act of infringement, even if the product at stake is not yet marketable.


CASE REFERENCE: Cour de cassation, chambre commerciale, July 5, 2017, Bell Helicopter Textron Inc. & Bell Helicopter Textron Canada Ltd. v. Airbus Helicopters, case No. B 15-20.554.

A toll on Bell

Acts of infringement are broadly defined under French law, and this definition was further expanded in 2014. If we consider direct infringement of a product, article L. 613-3 (a) of the Code de la propriété intellectuelle defines the acts that are prohibited without the consent of the patent proprietor as:

making, offering, putting on the market, using, importing, exporting, transshipping or possessing for these purposes the product which is the subject-matter of the patent.  

Exporting and transshipping are the two terms which were added in 2014. However, the most interesting terms for the purposes of a legal discussion are probably “offering” and “putting on the market“, as they leave quite a bit of room for interpretation, one recent example being an infringement case brought by Eurocopter, later renamed Airbus Helicopters, against the U.S. group Bell Helicopter, based on French patent No. FR 2749561 directed to a landing gear with skids.

In 2012, the Paris Tribunal de Grande Instance (TGI) rejected all infringement claims, as well as all invalidity counterclaims.

In 2015, the Paris Cour d’appel partly reversed, upholding the validity part of the first instance judgment but reaching a different conclusion on infringement. In particular, the appeal judges had a broader view than the first instance judges on what can constitute an offer for sale.

In 2005, Bell Helicopter presented a first version of a helicopter called Bell 429 to the public:

  • by including it in their catalogue;
  • by showing a model in September 2005 in the good town of Toussus le Noble, which was reported on the website of a helicopter enthusiast (Bell argued that this was a confidential presentation);
  • by putting it up on the website of Rotor & Aircraft, their distributor in France.

The Bell 429, first version, incorporated the claimed landing gear, and this does not seem to have been contested by the defendant:

This literal reproduction was admitted when Mr. Robert G., structure manager of Bell Helicopter, was cross-examined during the Canadian proceedings and it is not challenged by Bell Helicopter Textron in the present proceedings. 

But, said Bell, this first version of Bell 429 was a prototype. The TGI agreed, and noted in particular that when this first version was presented in France, it was not yet approved for sale.

But the Cour d’appel took a different view:

Since this was a prototype, only Bell Helicopter Textron can be responsible for the presentation to the public, which they do not deny. They state that the presentation of September 15, 2005 was confidential. But the public was aware of it, since a third party mentioned it. The fact that this website was not updated has no influence on the validity of the offer made at this date, since the prototype was presented on an internet website accessible from France by a company representing Bell Helicopter Textron in France. 

[…]

Offering for sale extends to any material operation aiming at putting a product in contact with potential customers, at preparing a commercial launch, even if said product, which in the present case was not yet approved, could not be marketed. Indeed, this presentation of a competitor’s product in France may turn away part of the competitor’s customers. In fact, this presentation in France was preceded by presentations at the Heli-Expo congress in Houston, USA and at the annual forum of the American Helicopter Society in Montreal, Canada; and it was followed by short-term marketing of the second version apparatus, the approval of this second version having been obtained partly based on tests made on the first version. 

This offer, in these circumstances, is an act of infringement. 

So, even without any sale, and even if no sale is even possible because the product is not yet approved for sale, a presentation of the product to the public in France is an act of infringement if it can be analyzed as part of a preparation for future marketing. This seems to make sense, as it is certainly possible to start attracting customers even before the first product is actually sold.

Bell developed another line of defense based on article L. 613-5 of the Code, which provides a list of exemptions:

The rights conferred by the patent do not extend: 

a) To acts performed in a private context and for non-commercial purposes; 

b) To experimental acts concerning the subject-matter of the patented invention. 

[…]

However, this line of defense was dismissed by the court, since Bell could not prove that any scientific experimentation had been performed. Therefore, the presentation was deemed commercial in nature.

Having dealt with the first version of the Bell 429 helicopter, the court turned to the second version, which appears to have been designed as a workaround of the Airbus patent. The second version was approved for sale in 2009.

The efficacy of the workaround was put to the test in front of the court – and it failed.

The claimed landing gear was in particular characterized by the presence of skids comprising, in the front, a double curvature inclined transition zone, transversely oriented with respect to longitudinal support stretches, and forming an integrated front cross-piece, offset relative to a front delimitation of a plane of contact of the longitudinal support stretches.

Bell’s non-infringement argument was that there was no cross-piece structurally integrated to the landing gear. Instead, there was a cross-piece fixed owing to connecting sleeves. In addition, the gear was longer toward the front, so that there was no offset of the cross-piece relative to the front delimitation of a plane of contact. Finally, the technical advantages offered by the patent were not achieved, as in particular the weight of the landing gear was increased in this second version of Bell 429.

But the court held that there was still a double curvature inclined transition zone in the second version. Although a piece had been added in the front, the claim did not require the cross-piece to be at the front end of the gear, but only required the cross-piece to be offset relative to a front delimitation of the plane of contact, which was still the case. Regarding the structural integration of the cross-piece, the court noted that said cross-piece formed “a functional set” with the skids, so as to transmit mechanical constraints.

According to the court,

This configuration differs from classical landing gears, the cross-pieces of which are fixed with connecting sleeves and do not form a functional set. 

Without having access to the evidence, it is of course difficult to know whether the assessment made by the court is technically correct or not. But what is remarkable anyway is that the fact that the configuration of the infringing device was similar to that of the claimed invention, while at the same time different from conventional devices, appears to have been a key factor.

But the actual test that French courts are supposed to apply relies on a functional analysis, which is why the Cour d’appel also looked at the function of patented features and investigated whether those were (i) reproduced by the Bell 429, second version, and (ii) could be protected per se (irrespective of the claim wording).

According to the patent, deformations are present on the inclined transition zones, that is, as a whole, and not only on the curves. This technical effect is also reproduced on the second version of the landing gear of the Bell 429 apparatus from Bell Helicopter Textron, as indicated by Mr. PPL who states that the deformations are present essentially regularly on the whole transition zone, the zone with the largest level of constraints being where the cross-piece is fixed on the apparatus. 

[…]

The Airbus Helicopters patent covers, contrary to what is stated by Bell Helicopter Textron (namely that the implemented functions were known from the prior art), novel technical functions (front cross-piece with double curvature inclined transition zones, offset, which works in flexion on several planes and in torsion, related to the structure of the apparatus which transmits part of the constraints towards the skids), consisting in addressing the problem of resonance on the ground, by a better adsorption of forces upon landing. 

The documents communicated by Bell Helicopter Textron to demonstrate that the functions performed by the inclined transition zones of the Airbus Helicopters’ patent would be known from prior art landing gears are not relevant as these documents relate to conventional landing gears which do not have an inclined transition zone and work, unlike the invention, in flexion in only one plane, and it was previously stated that this invention is novel and particularly innovative. 

Quite interestingly, the patent proprietor conducted numerical simulations to demonstrate that the second version behaved similarly to the claimed invention in terms of energy adsorption. These numerical simulations were very criticized by the defendant, but the court did find them convincing.

Also, Bell had apparently submitted that the landing gear, second version, behaved similarly to the landing gear, first version, in the approval procedure for the helicopter in Canada.

The overall conclusion was thus the following:

This second version, despite the presence of a connecting sleeve on the first transition zone, and the addition of an element at the front end of the skid, has the same functions for the same result as the invention, and it is irrelevant that this result is not of the same level of sophistication as the invention’s. It should be noted that this modification of the first version was quickly implemented, apparently so as to react to the infringement lawsuit against the Canadian Bell company, a degraded embodiment making it possible to try to conceal the copying. 

In other terms, the second version was found to infringe the patent as well.

For whom the bell tolls.
For whom the bell tolls.

Another noteworthy aspect of the judgment is that statements and evidence from the parallel proceedings in Canada were abundantly referred to, which is not really usual. Very often, judges do take interest in foreign proceedings but they do not directly cite them. However, in this case, they took note of some relevant statements:

Mr. Robert G., manager at Bell Helicopter Textron, who was heard during the Canadian proceedings, acknowledged in front of the court that this modification was determined further to some quick thinking in order to give the second version of the landing gear a behavior identical to the first version. 

So the takeaway message for defendants could well be that a workaround supposed to work in the same way as a claimed invention is at a risk of being found infringing under the doctrine of equivalence. Unless of course the application of this doctrine can be ruled out because the technical functions at stake are already known from the prior art. At the very least, extreme caution is thus required at the time of the design-around.

As for this litigation, this is probably not the end of the story. First, a petition to the Cour de cassation (supreme court) is very likely in a high stake case such as this one. Second, the quantum of damages still needs to be determined. So, unless the parties settle (which is always an option, especially in the context of multinational litigation), we should hear again about Airbus Helicopters and Bell.


CASE REFERENCE: Cour d’appel de Paris, Pôle 5 chambre 2, March 20, 2015, Airbus Helicopters v. Bell Helicopter Textron Inc. et al., RG No. 13/00552.