Grounds of challenge narrow for Comptrollers' Opinions

In a ruling last week by Mr P. Thorpe on behalf of the Comptroller of Patents in the UK, Lundberg & Son VVS-Produckter AE v ZGP Ltd BL O/080/10, the request of Lundberg that a review be made of a non-binding infringement opinion was refused (such opinions may be obtained from the Comptroller under the Patents Act 1977, s.74B; though non-binding, they are relatively cheap to obtain and can be quite useful). The opinion had concluded that there was no infringement of Lundberg's patent by ZGP's Ecocamel shower head.

According to Lundberg, the opinion wrongly interpreted the manner in which ZGP's product worked. However, Mr Thorpe concluded that under the Patents Rules 2007, r.98(5)(b), the only ground on which a non-infringement opinion could be reviewed was if the decision was based on an incorrect interpretation of the patent and, as Mr Justice Kitchin had established in DLP [2007] EWHC 2669 (Pat) [noted here by the IPKat], the review could only consider whether the examiner had made an error of principle or his opinion was clearly wrong. Lundberg's request did not meet these requirements and must be dismissed -- though the company still had the option of getting a second, genuinely binding opinion, by suing for infringement.