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