“Virgin Atlantic Airways v. Zodiac Seats”

• 1. Where the existence or non-existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.

• 2. If the defendant is bound by the court’s declaration that the patent is valid although it has been revoked or amended, he should be equally bound whether the remedy sought is damages or an injunction. The distinction between past and future infringements makes no sense in a case where a single cause of action embraces both and the revocation or amendment is by statute effective ab initio.

• 3. Absent special factors, principle, fairness and commercial sense support the view that the fact that a patent has been revoked is a point which the alleged infringer should be entitled to rely on in the assessment, it is a new, centrally important, uncontroversial fact, and to deny the alleged infringer the ability to raise it would be to give effect to a monopoly right which the patentee never should have. Far from increasing litigation, permission to rely on the amendment of the patent would serve to put an end to the assessment.

• 4. It is wrong to prevent a person who has been held to infringe a patent from invoking in proceedings thereafter a subsequent revocation or amendment of the patent, in order to avoid liability for infringement.

• 5. A decision on infringement is in personam, so it only binds the parties to the action (and their privies), whereas a decision that a patent is invalid (or must be amended) is in rem, so it binds the world, just as the patent, so long it is in force, can be enforced against the world.

• 6. The policy of the Patents Act is that valid patents are enforceable against the world, even if an infringer is honestly and reasonably unaware of the existence of the patent. Equally, if a patent is revoked (or amended), the policy is that the revocation (or amendment) takes effect retrospectively, and that this can be relied on by the world. As such, it cannot be that someone who has failed in an attack on the patent is not entitled, like anyone else, to rely on the points that the patent has been revoked (or amended), and that the revocation (or amendment) is retrospective in its effect, whether in legal proceedings or in another context.

• 7. This case has important implications for the question whether English proceedings should be stayed pending a decision in concurrent opposition proceedings in the EPO. As it is difficult to defend the guidance given by the Court of Appeal in Glaxo Group Ltd v. Genentech Inc [2008] Bus LR 888 to the effect that the English court should normally refuse a stay of its own proceedings if it would be likely to resolve the question of validity significantly earlier, the appropriate tribunal to review the guidelines should be the Patents Court and the Court of Appeal.