A patent up in the air

With all the recent renewed talk about the UPC, the decision commented upon today reminds us how fragmented the European patent litigation landscape still is at this time.

The case at hand was in fact already mentioned on this blog a few months ago, when the judge in charge of case management, in an unusual move, decided that the court should hear a patent invalidity defense and rule on it first, before dealing with confidential exhibits in connection with the infringement claim, if necessary.

It turns out that this may have been the most efficient way to proceed after all, as the court has now declared that the claims of the patent in suit are invalid – so that the infringement claim no longer needs to be examined.

In this case, the patent proprietor is Lufthansa Technik AG, and the defendants are Thales Avionics Inc., Astronics Advanced Electronic System and Panasonic Avionics Corporation. The patent is EP 0881145, expired since May 2018, directed to a voltage supply apparatus for supplying voltage to electric devices in an airplane cabin.

The Paris Tribunal judiciaire deemed that the asserted claims are novel, but lack inventive step.

The reasoning does not lend itself to a full summary in a blog post such as this one; analyzing it in detail would require taking a hard look at the patent and the prior art.

What I do find interesting to note, though, is how the court commented on foreign decisions previously issued in connection with the same European patent.

Indeed, the patent was also asserted in Germany and in the UK against one of the same co-defendants.

In Germany, back in 2012, the patent was upheld by the Bundespatentgericht in amended form, with a combination of claims 1 and 2. The Mannheim Landgericht then found that the amended patent was infringed.

In the UK, the High Court found the same patent valid and infringed, in a judgment issued on July 22, 2020.

For the sake of completeness, I should add that Lufthansa was not so lucky on the other side of the pond, as the corresponding U.S. patent was held invalid for indefiniteness in a summary judgment issued by the district court of the Western district of Washington (upheld on appeal). But this is somewhat less relevant for us, since U.S. law is an entirely different story.

Going back to Europe, it thus appears that the French court came to a different conclusion from its German and British counterparts regarding the validity of the patent. Interestingly enough, the French judgment does not shy away from a comparison with the foreign judgments. On the contrary, it contains a couple of references to these foreign judgments.

The ups and downs of patent litigation.

First, in the novelty discussion, the court explicitly agreed with a portion of the British judgment, and relied on an admission made by one of the defendants’ experts in the UK to interpret a prior art document.

However, when examining inventive step of claim 2, the court expressed its disagreement with the position of the German and British courts, and more specifically with their interpretation of a prior art document called Neuenschwander. Let’s have a closer look at the point of contention.

Claim 1 of the Lufthansa patent is the following (with particular emphasis on the most important features for the discussion):

A voltage supply apparatus for providing a supply voltage for electric devices in an aeroplane cabin, comprising:
a socket to which the device is connectable by means of a plug and to which the supply voltage can be applied,
the socket comprising a socket detector detecting the presence of a plug inserted in the socket, and
a supply device being provided remotely from the socket and being connected to the socket via a signal line and via a supply line for the supply voltage,
the supply device applying the supply voltage to the socket when the plug detectors indicate the presence of the plug via the signal line to the supply device, characterized in that
the plug detector is formed such as to detect the presence of two contact pins of the plug in the socket, and the supply device only applies the supply voltage to the socket if the presence of two contact pins of the plug is detected simultaneously.

Claim 2 adds that:

[…] the supply device only applies the supply voltage if a maximum contact time is not exceeded between the detection of the first and the second contact pin of the plug.

A prior art document called Neuenschwander discloses a contact system for use at an outlet end of an electric supply line, comprising “two barrier portions, each of which is associated with [a connector end] and arranged between its associated connector end and [one opening] so as to operate [a] relay for connection of [a] supply line with [the] connector ends only when contact pins of an attachment plug are moved substantially simultaneously toward, and into contact with, said connector end (claim 3 of Neuenschwander).

One key issue was whether this teaches the claimed supply of voltage depending on a maximum contact time not being exceeded.

The TJ carefully looked at the analysis made by foreign European courts:

The meaning of this expression and the disclosure or not of a time out function by this prior art are extensively addressed in paragraphs 149 to 162 of the High Court judgment. Lufthansa Technik asserts, in keeping with the British judge’s ruling but also with the position adopted by the German court, that the notion of substantially simultaneous introduction of the contact pins is not mentioned as a condition for the supply – and thus as an additional level of desired safety – but as a fact related to the normal configuration of a plug. 

The Bundespatentgericht also rejected the assumption of a time out required by claim 3 of the Neuenschwander patent, because no time measurement is mentioned and none of the disclosed embodiments has a configuration including this timing function. […]

But the French judges disagreed with this assessment:

However, as rightly mentioned by the defendants, on the one hand this interpretation is remote from the literal wording of […] claim 3; and on the other hand, the EP’145 patent is not more explicit as to the implementation of this feature, since the scope of the invention is limited to a time measurement condition, or timing “concept”, irrespective of the technical means enabling its application, which leads to the conclusion that the skilled person was in a position to adapt the device by integrating such a function owing to their common general knowledge. 

The court went on with analyzing further documents to be taken into account in the inventive step assessment, and added the following general comment:

The implementation of this timing criterion involved operations of adaptation of the electric circuit within the skilled person’s reach, which Lufthansa Technik does not deny in its argumentation regarding the auxiliary objection of invalidity of claim 2 for insufficiency of disclosure, and which can be deduced from the very wording of the EP’145 patent which does not provide any indication in this respect.  

Lack of judicial consistency in pan-European patent litigation is usually considered a bad thing and one of reasons why we badly need the UPC.

On the other hand, since we do have a divided court system in place, I find it rather reassuring that each court pays close attention to reasonings developed abroad but still makes its own independent assessment of the case. Reasonable minds can differ, after all.

As another remark, and with the caveat that I have not looked in detail at the patent and the prior art and have thus not formed a personal opinion on this matter, it is interesting that the court has taken into account the extent of actual disclosure in the patent when determining whether a claimed feature is actually distinguishing over a similar general statement in the prior art.

It would appear that there is room for so-called squeeze arguments in France.

A big thank you to Sandrine Bouvier-Ravon and Jean-Martin Chevalier for sending this decision!


CASE REFERENCE: Tribunal judiciaire de Paris, 3ème chambre 2ème section, December 4, 2020, Lufthansa Technik AG v. Thales Avionics Inc. et al., RG No. 18/04501.

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