Cut-throat competition prevails in the aerospace industry.
Two major players dominate the stage: the American Boeing and the French Airbus.
The patent attorneys of these two aviation giants recently met during oral proceedings at the European Patent Office (EPO) in Munich. Arnold & Siedsma represented the interests of the American powerhouse.
The difference of opinion related to patent EP1308746 on a Boeing invention from 2000 in the field of automatic navigation of aircraft. With the assistance of Arnold + Siedsma, Boeing had obtained the patent in 2006 for the entire European market.
Airbus believed that parts of an earlier system known as AIME comprised the same technology and contested the patent on Boeing’s invention.
The case ran highly advantageously for Boeing. The decision can be found here.
The Arnold & Siedsma patent office has now been providing European patents for aircraft manufacturer Boeing for several decades. Patent attorney Addick Land (The Hague office) has now built up a solid reputation among those in the business due to his years of expertise in patents in the field of aircraft construction and navigation systems. He attends the offices of the EPO in Munich and The Hague on a monthly basis to conduct oral proceedings.
So it was only logical that Addick Land replied to the prosecuting party Airbus on Boeing’s behalf during the oral proceedings. He was assisted here by fellow patent attorney Michiel de Baat (Eindhoven office).
A granted patent: solid as a rock?
Theoretically, you might think that a patent, once it has been granted, establishing the unique nature and renewal value of an invention, is a done deal. But that is not the case. To quote the poet Willem Elsschot: “Between dream and deed, laws and practicalities remain”. Competitors stand in the way of granted patents, often with substantial commercial interests in – as in this case – the European aviation market. A granted patent can be opposed, particularly if the stakes are high enough.
The objection procedure
An objection may be lodged against any European patent, and this right is frequently exercised. After a patent has been granted, a written notice of opposition can be submitted. The submitting party is the opponent. The opposed party can then defend itself in writing. In the case described here, Arnold & Siedsma had replied on behalf of Boeing in 2007 to the notice of opposition from Airbus. Following this written phase, the European Patent Office (EPO) issues a preliminary opinion (PO), in which it gives its opinion on the current state of affairs. In fact, the EPO formulates the basis for the discussion during the oral proceedings.
The oral proceedings consist of a presentation of the arguments and an assessment by a delegation of three engineers from the EPO. They give their verdict there and then after hearing the arguments. A specific sequence is followed here: The patent is first examined in the broadest scope and, following any rejection, it is assessed in an amended, slightly less broad scope.
Arnold & Siedsma was able to refute all objections on Boeing's behalf, as confirmed by the positive PO in Boeing’s favour.
So, on the face of it, things were looking good for Boeing. However, it is imperative in cases like this to remain alert and do your homework carefully. It is not inconceivable for a patent to be knocked down during oral proceedings, for example because new arguments are put forward.
For this reason, Arnold & Siedsma submitted additional documents to the EPO at the beginning of this year as a precautionary measure in order to reinforce and refine the patent description of Boeing’s navigation system, in case the EPO requested them during the oral proceedings.
The anticipation of awkward questions, also referred to as ‘precautionary measures’ or ‘auxiliary requests’, paid off during these oral proceedings. Airbus put forward new arguments, but Addick Land and Michiel de Baat were able to fend off these ‘bolts out of the blue’ there and then.
As many as 15 rounds were then needed to hear both sides of the argument. In the end, the entire proceedings took almost eight hours.
In each round, the three EPO ‘judges’ specialising in the subject-matter weigh up the case for and against the patent concerned. So an exhausting debacle takes place, in which the parties bombard each other with counterarguments.
To cut a long story short, the EPO finally decided in Boeing’s favour. The company was able to go home with a fine patent, albeit with a few amendments to the originally filed description, but in essence not differing from the patent that had already been obtained in 2006.
Well-prepared for the session
Good preparation is half the battle. This was also the case here. Addick Land knew from experience that a counterparty can launch a surprise attack during oral proceedings. A substantive reply was therefore prepared in advance to cover all conceivable options open to the counterparty. A proactive approach like this takes time. It is of course always a difficult task to prepare for unforeseen events. The necessary preparations must be made, even for a case that has apparently been won.
Long time period
Is it not too late in the day to dispute a patent which has already been technically and substantively overtaken by time? No! On the basis of this patent, Boeing, as the only right holder, was able to elaborate on the original design. This allows Boeing to block the path of its competitors in the short and long term. Boeing’s new showpiece, for example, the 787 Dreamliner, is provided with navigation equipment based on the invention from 2000 and subsequent inventions.
The distinctive feature of Boeing's GPS navigation system from 2000 was the ability to adapt data very quickly to changing circumstances during a landing. In the same way that our TomTom or GPS can lead us ‘down the garden path’ rather than to our destination, aircraft navigation systems can also occasionally develop faults. Boeing’s patent enabled corrections to be made within seconds. These fast corrections are essential, particularly during the landing.
The technology of this patent also appears to be a very important part of a (future) fully automatic landing system, referred to as the Instrument Landing System (ILS) category IIIC.
Walking on eggshells
Safeguarding the interests of a client during oral proceedings is definitely a case of ‘walking on eggshells’. Every statement is placed on the scales and weighed; every hesitation or stumble in wording, even a raised eyebrow, can be used against you. It is therefore vital for a patent attorney not only to be meticulous, but also to play his hand flawlessly and at exactly the right time.
Arnold & Siedsma patent attorneys succeeded in upholding the Boeing patent.
Even so, the champagne was not flowing in the Arnold & Siedsma offices in Munich.
However, as Addick Land himself put it: “After winning the dispute, we of course took some time out to relax”, especially as it was his birthday that day.
And Boeing? It is already working hard on other patents. The company files an average of 500 a year. So Arnold + Siedsma always has work in hand for this American client.