Cases update: Intellectual Property infringement claims in the aviation industry
Global | Publication | December 2020
The English High Court recently handed down two cases, one regarding the appropriate forum to hear a claim between a UK based company and an international airline and the other intellectual property infringement claims in the aviation industry.
The case of Performing Right Society Ltd v Qatar Airways Group QCSC  EWHC 1872 provides helpful guidance as to what factors the English Courts will consider when determining the appropriate forum to hear a claim, particularly in disputes of a global nature. This is particularly relevant for airlines whose aircraft cross a variety of flight routes and which have a major presence at airports outside of their ‘home’ country.
The judgment in Lufthansa Technik AG v Astronics Advanced Electronic Systems and another  EWHC 1968 (Pat) provides some welcome comfort to airlines looking to protect patented aircraft and aircraft cabin components.
Performing Right Society Ltd v Qatar Airways Group QCSC  EWHC 1872
On 17 July 2020, the English High Court ruled that it was entitled to take jurisdiction over a copyright infringement case brought by the Performing Right Society (PRS) against Qatar Airways. The case related to Qatar Airways’ broadcasting of copyright material on its in-flight entertainment system and whether the required royalties had been paid.
Qatar Airways argued that the case should be heard in Qatar, which is the centre of its operations and the place where the majority of its flights start and end. However, the High Court ruled that the matter is a “global copyright dispute” between PRS as the holder of the UK and global copyright rights of more than 5,000 musical works and Qatar Airways as the “user of the protected content who is using it all over the world”. On this basis, the infringement claim in question was held to be connected to every state to and from which the aircraft in question are flown.
PRS is a collecting society which represents and collects royalties for numerous songwriters, composers and music publishers.
Qatar Airways is a leading passenger airline, with flights to more than 160 destinations in 80 countries. It has its own in-flight entertainment system.
PRS issued a claim alleging that Qatar Airways infringed PRS’ worldwide performance rights in the music contents offered to passengers via the in-flight entertainment system, in the UK, Qatar and any other jurisdictions in which the Qatar Airways aircraft were present from time to time, or the airspace over which they flew. PRS also sought an injunction to prevent further alleged infringements and an inquiry for damages (being a court assessment of total damages owed).
Qatar Airways applied to strike out the claim on the basis that the English court was not the appropriate forum for the dispute to be heard. It argued that England was only tangentially relevant to the issue of its use of copyright materials on the basis that some of its flights began and ended in the UK. It argued that the correct forum for the proceedings was Qatar, where its operations were based and where the majority of its flights began and ended.
In considering the issue of the appropriate forum (forum conveniens), the High Court adopted the twofold test derived from the The Spiliada decision: (1) is there another available forum (i.e. the Qatari court) with which the action has the most real and substantial connection; and (2) if yes, is England nevertheless the appropriate forum, in particular because the court is not satisfied that substantial justice will be done in the alternative forum.
The High Court held that a number of states were relevant to the dispute, although it was noted that the dispute had more of a connection with the UK and Qatar than with any other state. The High Court recognised that Qatar Airways had close and genuine links to Qatar. Given the proportion of time spent by Qatar Airways’ aircraft in Qatar / Qatari airspace, it was also accepted by the High Court that the Qatari law of copyright infringement was going to be applicable for a larger portion of the time than English law.
However Qatar Airways did have a connection with the UK. It was noted that that Qatar Airways has a registered UK establishment, presence at major UK airports, offices based in London and a large number of English speaking staff. The High Court accepted that the Qatar Airways aircraft spend a higher proportion of time in Qatar than in the UK, but pointed to the fact that a significant proportion of the relevant, allegedly copyright infringing acts took place in the UK, and also in other jurisdictions. The fact that a higher portion of any damages may be due for acts for which Qatari law is applicable than those for which UK law is applicable did not in itself make Qatar clearly and distinctly the appropriate forum for which the dispute had the most real and substantial connection.
Qatar Airways’ case on forum non conveniens was therefore dismissed. The case will now proceed to trial in the English Courts.
The High Court specifically described this case as a “global copyright dispute between a UK holder of those global rights and a Qatari user of the protected content who was using it all over the world”. Notably, it was stated by the High Court that the dispute had a connection to every state to and from which Qatar Airways flies its planes.
This decision provides an interesting backdrop for the more recent decision in the Qatar Airways Group QCSC v Middle East News FZ LLC & Ors  EWHC 2975 (QB) case handed down on 6 November 2020. In that case, the English High Court ruled in Qatar Airways’ favour that England was the appropriate forum for the malicious falsehood claim brought by the airline against the defendants. The key factor for the Court’s decision was stated to be due to political tension between Qatar and the UAE and it was held that “the UAE would not be perceived as a neutral forum”. This decision points to another factor that the English Courts will take into consideration when determining appropriate forum.
The English High Court has demonstrated on many occasions over recent years that it is willing to assume jurisdiction over global intellectual property infringement cases and this can be seen as simply the latest in the line of cases. It also demonstrates however that airlines are particularly susceptible to facing/bringing legal challenges in multiple jurisdictions, simply because of the international nature of their businesses. It is worth noting that when the Brexit transition period ends on 31 December 2020, European patents will continue to have the same legal affect as national patents in the UK.
Lufthansa Technik AG v Astronics Advanced Electronic Systems and another  EWHC 1968 (Pat)
The UK High Court handed down its judgment on 22 July 2020 on two patent infringement actions concerning a patent (Patent) owned by Lufthansa Technik AG (Lufthansa). The Patent was for an “electrical power supply device”, namely high voltage sockets for personal electrical devices to be used in commercial aircraft cabins. Lufthansa claimed that the Patent in question was infringed either directly or indirectly, by Astronics Advanced Electronic Systems, Safran Seats GC Ltd., and Panasonic Avionics Corporation respectively (together, the Defendants). In response to the infringement claim, the Defendants argued that the relevant claims of the Patent were invalid for lack of inventive step and novelty (for a patent to be valid it must be new and not obvious as against technology already available at the relevant time).
The High Court undertook a detailed analysis in determining whether the Patent was valid and infringed by the Defendants, which included identifying the “skilled person” and whether the requisite novelty and inventive step requirements had been met.
Case background and decision
The patented invention, an “electrical power supply device”, allows passengers on airplanes to plug in their personal electronic devices into the high voltage socket in their seat, and to charge their personal devices safely. The High Court noted that prior to the invention, “some airplane seats did have a socket into which a passenger could plug his personal electronic device but the power supply was a low voltage DC and it was necessary to use an adapter to plug the device into the socket”.
The Defendants argued that the Patent lacked novelty and inventive step, and was therefore invalid.
In determining the validity of the Patent, the High Court began with identifying the skilled person. The High Court described the relevant skilled person as being “a graduate with technical knowledge and experience of the design and implementation of power supply technology, together with the general safety considerations applicable to electrical devices. The skilled person would not be a new graduate acting alone”. The Defendants’ skilled person would “have a degree or equivalent qualification in electrical engineering and three to five years’ experience working in the airplane business, either for an aircraft manufacturer or component manufacturer”.
The High Court decided that the invention was novel given that it included new safety features that were particularly useful in the airline cabin environment.
The High Court also concluded that the invention was not obvious, stressing that the “the issue is whether the matter which is said to involve an inventive concept was technically or practically obvious not whether it was obvious that it could be exploited commercially”.
As a result, the High Court ruled that the Patent was valid and infringed by all three Defendants.
Patent infringement claims are not new in the airline sector and have featured in litigation concerning components as diverse as engineered engine parts and airline seats.
However as the airline cabin environment becomes increasingly sophisticated, we can now expect to see claims expand to cover electronics and telecommunication patents that were historically the preserve of other sectors.