His Honour Judge Birss QC issued his first "preliminary non-binding opinion" on the merits of an infringement action at a case management conference in the Patents County Court earlier in the year. This development may become a more widely used procedure as the Judge was recently asked to issue such an opinion again in the recent case of Fayus Inc & another v Flying Trade Group plc.

The judge noted that the procedure may be useful in facilitating a settlement between parties. However, as such an opinion will affect the respective parties' bargaining positions, thought must be given as to whether a non-binding opinion at an early stage should be requested or agreed to.