Odds and Ends: Seeking an injunction against A320 sharklet sales; more

A320 Sharklets: Remember the lawsuits between Aviation Partners and Airbus over winglets and sharklets? AP wants an injunction against A320 sharklet sales. That sure got Airbus’ attention.

American and US Airways: Bloomberg has a long piece on US Airways’ effort to acquire American Airlines.

Emirates Airlines: The fast-growing carrier is about to become the world’s third largest.

Airbus and US Spending: Airbus wants to double its US supply-chain sourcing to $24bn.

Boeing BWB: This article has some pictures of Boeing’s latest version of the Blended Wing Body research model.

44 Comments on “Odds and Ends: Seeking an injunction against A320 sharklet sales; more

  1. Winglets/Sharklets/snotty noses 😉

    from the link:
    “Aviation Partners accuses Airbus of “copying” the sharklet design using Aviation Partners’ proprietary information and data supplied to the airframer under a non-disclosure agreement, the Seattle-based supplier says in court documents.”

    Interesting: AP going the contract litigation way.
    Does this mean that AP too sees their patent as worthless ( in general/for this case) ?

    • Or, more likely, that they believe Airbus is trying to steal their intellectual property without paying for it?

      Re the fact that Airbus is finally deciding to put a real winglet on the A320: Does this mean that Airbus sees that there is value in the technology?

      • Well, up to now AP talked about patent infringement.
        ( only problem imho is that that patent describes a generic
        optimisation process. This could be lawyers excelling over themselves )
        to winglet or not:
        In my understanding the winglets from AP had a too
        “peaky” performance topology for Airbus’ taste.
        For the time a principal problem of researched large wingtip devices.
        No idea what distinguishing difference their own product
        now exhibits. Performance gains in a wider range of the envelope?

      • BucK T :
        Or, more likely, that they believe Airbus is trying to steal their intellectual property without paying for it?
        Re the fact that Airbus is finally deciding to put a real winglet on the A320: Does this mean that Airbus sees that there is value in the technology?

        What “technology”? The blending of the winglet into the wing? Don’t think that in itself is patentable.
        Any infringement, alleged or actual, would have to relate to the actual design of Aviation Partners’ own blended winglets and patents relating thereto. Whether Airbus has done any such thing is going to be hard to prove without inside knowledge, as Airbus’ and AP’s design documents are confidential as far as I am aware.
        Timeline-wise, Airbus tested winglets designed in house as well as some designed by Winglet Technology LLC in 2006, but didn’t go ahead with the programme. In 2008, they first partnered up with AP to research/design blended winglets. These were even flown on A320 MSN001 in 2009:
        http://www.flightglobal.com/news/articles/pictures-a320-begins-flight-tests-with-aviation-partners-320252/
        Airbus then launched sharklets in late 2009 – Airbus always stated that these had been designed in-house.
        The sharklet does indeed look different from the AP design Airbus tested previously, but AP’s claims may relate to other patents that aren’t immediately
        http://www.flightglobal.com/news/articles/airbus-conducts-first-a320-sharklet-flight-365446/
        For comparison: Winglet Technology’s 2006 design
        http://www.flightglobal.com/news/articles/pictures-second-curved-large-wingtip-devices-design-tested-on-airbus-a320-207677/
        …and Airbus’ in-house design
        http://www.flightglobal.com/news/articles/airbus-ready-to-relaunch-a320-winglet-tests-after-deal-with-api-315921/

        So chronologically, it’s possible that Airbus used AP’s input on their own devices. Whether they did… who knows.
        I do find it interesting, though, that AP and Airbus still signed an MoU about a joint venture to commercialise an AP design for the A320 family in July 2011, i.e. over 1 1/2 years after Airbus first offered sharklets.

        By the way, the injunction sought by AP relates to a lawsuit filed by Airbus late last year.
        Sombe background:
        http://www.flightglobal.com/news/articles/aviation-partners-seeks-dismissal-of-airbus-winglet-lawsuit-367720/

      • I too am curious what the real differences between the “winglet” and “sharklet” are besides the name. I am by no means an engineer, nor do I come from a technical background, but they sure look awfully similar to me. I’ve heard it said that if it looks like a duck, walks like a duck, and quacks like a duck…

        The great thing about litigation as opposed to mediation, is that we will all finally be able to see the detailed differences that Airbus claims exist between the two products. Maybe that’s why A would prefer quiet mediation?

    • Uwe :Interesting: AP going the contract litigation way.Does this mean that AP too sees their patent as worthless ( in general/for this case) ?

      The fact is that they on have a patent yet, just an application for a patent (EP2303685). They can be sure that Airbus (and others) will challenge this application and provide prior art.
      http://worldwide.espacenet.com/publicationDetails/inpadoc?CC=EP&NR=2303685A1&KC=A1&FT=D&ND=3&date=20110406&DB=worldwide.espacenet.com&locale=en_EP

  2. With Respect to the US Air bid for AMR. There is an interesting twist to the story in that IAG, the British Air/Iberia parent company, is moving to take a stake in AMR to prevent any merger from pushing AMR out of their One World Alliance. US Air is in Star Alliance. Should IAG get their stake it would effectively block US Air from merging, unless US Air was willing to quit Star Alliance, of course.

    US Air is indeed, as the story categorized, the “ugly girl”. They SHOULD have gone out of business after 9/11. If it weren’t for the “minor detail” that many of the congress critters have their frequent flyer programs with US Air, they would have. It would have been much better for the industry if they had been allowed to go under back then.

  3. Howard :That is a European Patent application. They have a standing US patent, have had for a very long time. ISTR that it’s nearing expiration. Airbus’ case was to drag out the battle in court until expiration and then claim they could move on regardless. We’ll see.

    The EP is part of a PCT who has also US, CA and CN national phases.
    The US you are refeering to are US5102068 (lapsed) and US5348253 (will lapse 20-09-2014). These only valid in the US (no PCT, no other national phases). Airbus may be the one challenging the later one as there is a request for reexamination that has been filed. It is common practice on the last years of validity of patents of interest.

  4. anfromme :
    What “technology”? The blending of the winglet into the wing? Don’t think that in itself is patentable.

    Too late. The blended transition is already patented. See API US patent 5,348,253.

    Uwe :
    Well, up to now AP talked about patent infringement. ( only problem imho is that that patent describes a generic optimisation process.

    You seem misinformed on this point, UWE. The API patent (see above) specifically defines the profile and geometry of the “blended” transition between the wing as providing “a desired drag reduction for minimal structural weight”. This is the central technology protected by the patent.

    It may be very hard for Airbus to argue (in US courts anyway) they did not violate the aforementioned part of API’s patent unless Airbus can demonstrate prior art. On the other hand, if API can prove Airbus trespassed this portion of their patent, API will be getting a nice fat check from Airbus for every A320 with sharklets sold (into the US, anyway). Given the nearly non-existent premium Boeing and Airbus seem to charge for their new models, such a royalty scheme could mean Airbus nets less from a sharklet equipped aircraft than they do from an A320 with tip fences. The operators win either way, but I suspect API will end up getting a slice of this pie, which may make Airbus the loser in all of this for treading a bit too close to API’s technology.

    • Of course the 737 MAX winglets are also very similar to an API design as well …

      • Yes, but the main difference is that the 737 winglets are built by APB, which is a JV between API and Boeing.

      • 737 NG ones are from API, yes. But if I have understod correctly, the much-ballyhooed 737 MAX winglets are supposed to be a Boeing internal design (though similar to the API design), so BA escapes paying the royalties to API.

    • “The API patent (see above) specifically defines the profile and geometry of the “blended” transition between the wing as providing “a desired drag reduction for minimal structural weight”. This is the central technology protected by the patent.”

      That _is_ a generic optimisation process. There is some equational mumbo jumbo added but the central claim is a generic optimisation process. Process and algorithms are not patentable. ( Though the USPO has been rather lax in that respect. One reason why patent takedowns have gained significant popularity. ( patent trolls being the other push factor )

    • CM :

      anfromme :
      What “technology”? The blending of the winglet into the wing? Don’t think that in itself is patentable.

      Too late. The blended transition is already patented. See API US patent 5,348,253.

      My apologies, I found that in the meantime as well. Still find it astounding that a blended design in itself (without specifying aspect ratios, etc.) is actually patent-able, to be honest.Ho-hum… 🙂

      • I think Airbus are going to argue precisely that the patent shouldn’t have been granted. The patent is an odd one, from my limited knowledge of these things. It doesn’t seem clear what API want to claim.

  5. ewe: “Interesting: AP going the contract litigation way.
    Does this mean that AP too sees their patent as worthless ( in general/for this case) ?”.

    The way to defend a patent is to take it to litigation, it is worthless if you don’t defend it. If they thought it was worthless then taking to litigation would just waste money on lawyers, which for a company the size of AP going up against AB would be pretty stupid.

    If it was “prior art” or AP tried to patent something that was already available then others can argue that the patent has no merit. That could be brought against AP by someone else, or used as a defense if AP brought suit. So in theory AB could win the case if they can prove someone else had the idea before AP patented it.

    As to the technology – the breakthrough AP made was to blend the wing contour smoothly into the winglet; I’m not aware of having been done before. A normal winglet just acts like a wing extension, but the blended version actually has superior performance to a normal strakelet.

    The design is enough unique that Boeing has to pay royalties to AP to use these on the 737.

    • You start pretty low and end even lower.

      If the AP patent is a claim on a generic process it does not even need prior art to be invalidated.
      Paying royalties today is regularly not proof of claim validity. More about corporate politics and what is the less costly solution. Just look a the current motorola/apple litigation that leaves patents in the ditch left and right.
      Lastly and assuming validity of the AP patent upheld Airbus would have to have replicated this specific arrangement. ( not the objective ). I could pack you a vast range of different airflow influencing arrangements into a line of winglets that appear indistiguishable from each other on the average press photo.

      • I would agree with Uwe here… I have designed plenty of airfoils (for engines and not a/c adtmittedly) and have four patents to my name for aerodynamic devices of various sorts. You have to be extremely specific in defining what you want to patent as so much has been patented before.

        The general principle of wingtip devices is old and all previous designs would have had some fillet radius between the wing and the device so that they are too to some extent blended, i.e. not a sharp corners. Therefore, you cannot simply patent a blended winglet without specifically pointing out what kind of blend you want the patent to cover. You must also argue, and prove, why this is novel.

        I patented a very similar case a number of years ago (in that it dealt with blended airfoils, but in an engine) and I had even to specify the radii of curvature for my invention, the radii themselves were not enough to distinguish the invention from prior art.

        And, lastly, as Uwe said, general procedures are not patentable…

  6. thysi :
    Of course the 737 MAX winglets are also very similar to an API design as well …

    You are confusing “design patents” with “utility patents”. Design patents protect the way things look in a visual sense. BMW has a design patent on their double kidney grill design. Utility patents are more about functionality than form. API does not have design patents on their blended and “scimitar” winglets, they have a utility patents. In both cases, API’s patents cover the way the blended tranasition works, not how the winglet itself looks.

    The feathered winglet design being used by Boeing on the MAX may look like API’s scimitar winglet, but it is prior art both in terms of its form and its function (search the web for an image of the MD-12). Because Boeing is not using the blended transition, there can be no infringemnt claim based on API’s existing utility patents.

    • The BMW kidney grille is trademarked, not patented, so let’s not mix that in here.

      As far as I can tell from the MD-12 concept photos (which I believe is all that ever existed, not clear how much actual engineering work was done on this aircraft concept) its wingtip devices most closely resemble the A320 wingtip fences.

    • There is not such thing as a difference in design or utility patent. You have a patent or you don’t. If you have a patent, you have a novel idea that you have protected.

      For designs there are a number of similar legal mechanisms, and these vary from country to country, but they are not patents.

      If AB defines a transition that is blended in a different way than AP’s design, then there is no patent infringement. That Boeing has a winglet device that goes both up and down is of little relevance in this case, they still has to avoid the blended profile of AP’s patent (provided that the patent holds).

        • Note that this is the US arrangement of protections only.
          Forex In Germany there is “Gebrauchsmusterschutz” for distinctive features which
          has closer links to Markenzeichen / Trademark law than patent law.
          Never delved much into this or how other countries solved it.
          What I took away from other discussions is that the USPO has been extremely
          careless in assigning patents in the past., reforms are urgent and seem to be on the table.

      • I agree with Uwe, USPTO is an ornery, obese and obsolete beast. it takes years to get patent applications reviewed, and far too many patents (with existing prior art) are granted. Reform is badly needed, probably both in terms of USPTO itself and the underlying patent legislation.

  7. There was interesting background to the dispute in the WSJ back in March. Airbus wants to have the patent CM referred to above declared as invalid, thereby destroying Aviation Partners’ business. The AP injunction against Airbus also shows why each litigant needs to win the patent dispute.

    I assume the NDA is irrelevant: either Airbus is infringing AP’s patent or it’s not. In patent disputes it seems you try every defense you can, fire all your ammunition and hope something will kill the other guy.

    Also, Aviation Partners doesn’t have a monopoly on winglets that have a curved joint to the wing. The patent would have to be more specific than that.

  8. Although smaller, the MD-12 concept is strikingly similar in looks to the A380.

  9. thysi :
    The BMW kidney grille is trademarked, not patented, so let’s not mix that in here.

    You’re wrong. In the US, the BMW kidney design is both trademarked and patented with a design patent. Many times over, in fact. Here are just two examples.

    US Trademark Registration Number – 1606324
    US Design Patent Number – D429195

    thysi :
    As far as I can tell from the MD-12 concept photos (which I believe is all that ever existed, not clear how much actual engineering work was done on this aircraft concept) its wingtip devices most closely resemble the A320 wingtip fences.

    Both upper and lower “feathers” of the MD-12 winglet are angled, not vertical like the Airbus tip fence. Both designs are drag reducing devices, but the MD-12 and MAX tips also provide significant lift, improving the L/D of the wing. The classic Airbus tip fence adds no lift to the wing.

    There is a very detailed and public Airbus study published in 2005 which covers performance differences and the pros and cons of each tip design. It discusses the difference in lift between a “sharklet” style angled tip device and the classic Airbus tip fence in great detail, including data from wind tunnel tests. You can find it by Googling “M-DAW Wingtip”.

  10. The API blended winglet patent was recently invalidated by the US patent office in the re-examination. The patent office found that it was simply not new given the state of the art at the time API claimed to have invented it. Perhaps the famous API technology is not so innovative after all?

    • Interesting.
      Has that been published anywhere? ( Could only find the reexam request on the web )

  11. It’s hard to find, but you need to search on the US patent office website under “public pair”

    http://portal.uspto.gov/external/portal/pair

    and after you’ve gone through the captcha thing, search for the application number

    90/012,045

    I think no-one has picked this up as it is quite hard to find.

    • Thank you.

      current status: Non-Final Action Mailed
      pretty open in all directions, isn’t it?

      • The “image wrapper” page has the actual documents on it. Basically USPTO rejected claim 1 (the core of the patent) based on a report Boeing did for NASA on the 747 in 1980.

        You can also see in the earlier documents that the re-examination was requested by Airbus in December 2012, and includes a number of other documents in addition to the Boeing/NASA one.

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