Insights: Reassurance that EPO procedural errors are not fatal in the UK

A recent decision issued by the Court of Appeal in the long-running dispute between Virgin Atlantic Airways Ltd (“Virgin”) and Zodiac Seats UK Ltd (“Zodiac”) provides some further reassurance for Patent owners regarding the limited grounds on which a granted European Patent may be challenged in UK Courts.

Details of the case may be found here. Whilst the appeal considered the validity of three of Virgin’s European(UK) Patents, it was Zodiac’s attempt to challenge one of those Patents in particular that may be of significant interest.

The Patent started life as a European Patent application. On filing the application at the European Patent Office (EPO), Virgin expressly did not designate the UK. The application was however published by the EPO designating all contracting states, including the UK. Virgin later wrote to the UK Intellectual Property Office (UKIPO) indicating that they intended to withdraw the UK designation before grant of the Patent. No further action was taken by Virgin to withdraw the UK designation though and upon grant of the European Patent, it inevitably came into force in the UK.

Zodiac’s position was that an error had been made by the EPO during prosecution of the European Patent application. Had that error not been made, the Patent would never have come into force in the UK. However, UK statute and case law clearly sets out the limited grounds for challenging a granted Patent: patentability; grant of the Patent to the incorrect party; insufficiency of disclosure; and added subject matter. Procedural errors during examination and grant of a Patent application are not expressly listed as a ground for revoking a Patent. Zodiac attempted to overcome this by arguing that the European Convention on Human Rights (ECHR) had changed this position and should allow for a challenge on the grounds that Virgin had not originally designated the UK.

The Court of Appeal was not persuaded by these arguments and confirmed that the grounds for challenging the grant of a European Patent are limited to those set out in the statue. This is reassuring confirmation for Patentees that after a European Patent has been granted and come into force in the UK, it seemingly cannot be challenged in the UK Courts on the grounds of procedural errors during the examination and grant of the Patent application.