If you have a patent that is infringed by another business, you can sue the other business for the infringement as long as the patent is in force and, hitherto, the decision to award damages could not be reversed if the patent was subsequently invalidated. That is how the law used to be, but a recent case has, it seems, added a caveat.
It involved a designer of aircraft seats and Virgin Atlantic Airways Limited. Virgin alleged that its patent had been infringed by the designer and damages totalling nearly £50 million were awarded after a 2009 decision by the Court of Appeal that the patent was valid and had been infringed.
In 2010, the patent was ruled to be invalid as regards the areas in which infringement was alleged. The Court of Appeal refused to quash the order for damages, however. The seat manufacturer appealed that decision to the Supreme Court.
The Court considered that, in effect, Virgin was seeking to claim £49 million in damages for a patent that was not infringed.
The decision opens the door for claims to be made in similar cases in which damages have been paid relating to infringement of patents which have subsequently been invalidated.