Electromagnetic Geoservices ASA v Petroleum Geo-Services & Ors

This case is about EP (UK) 256 019 entitled “Method for Determining the Nature of Subterranean Reservoirs”. The patent concerns the use of controlled-source electromagnetism, CSEM, in searching for oil reservoirs under the sea. EMGS contended that PGS infringed the patent and that it was valid. PGS denied infringement and contended the patent was invalid.

The patent has been litigated in the English courts before. Schlumberger brought proceedings to revoke the patent. In Schlumberger v EMGS [2009] EWHC 58 (Pat) Mann J held that the patent was invalid but on appeal at [2010] EWCA Civ 819 the Court of Appeal held that it was valid.

The trial took 11 days in the Patents Court. For one patent, that is a lot. The issues involved difficult physics and mathematics. In order to explain and address them, it was going to be necessary to deliver a judgment which delved into Maxwell’s equations, 3D vector calculus and imaginary numbers. Before the judgment was completed the parties settled the proceedings. They are to be congratulated for that. It has saved the court and it will save the parties a lot of costs and trouble. Normally there would be no reason to give any sort of judgment at all in these circumstances but this case was unusual in one respect which warrants it.

Before the trial I had the benefit of a teach-in from a neutral scientific adviser, Dr Karen Weitemeyer. Directions for this were addressed in an interim judgment EMGS v PGS [2016] EWHC 27 (Pat), see in particular paragraphs 27-36. Dr Weitemeyer was provided with a set of brief instructions which were settled by the court. They consisted essentially of the two primers (on geology and CSEM) as well as short extracts from the expert’s reports which dealt with matters of background. She was not told about the issues. Dr Weitemeyer was asked to prepare materials, effectively Powerpoint slides, to educate the court on five topics. The teach-in took place over the course of a single day as a meeting between myself and the Doctor. The parties were not present and I was able to ask candid questions and learn. I learned a lot. Afterwards the paper materials were provided to the parties so that they could see what had happened.

There are two things I wish to say.

First, this practice of having a neutral scientific adviser to assist the court in getting into the technology, but not sitting in court for the whole trial, was a useful one in this case. No doubt in the end the court might have reached the same level of understanding of the issues eventually but speaking personally, I would have needed much more time to read into the case in advance without this assistance and the trial itself would have had to be conducted more slowly. The teach-in allowed the speeches and cross-examination to proceed more briskly than would have been possible without it. So time and therefore cost has been saved and the court’s comprehension of the issues was significantly improved.

Patent trials inevitably involve the court deciding what can be difficult technical issues on conflicting expert evidence. As has been said in a number of judgments, what matters is not the opinions the experts’ express as to the conclusions to be reached but the reasons they give for them. In order to be able to decide the case, the court therefore needs to be able to understand not only the experts’ opinions but also the material on which those opinions are based and the reasons for them. That is why the task of educating the judge is of such significance and time spent on it is rarely wasted. One cannot evaluate what one does not understand. In the majority of patent cases the combined efforts of the legal teams and the expert witnesses achieve that result, but experience in this case shows that sometimes the further step like this one is useful and proportionate.

The transparency of such an exercise was recognised as an important factor in Halliburton v Smith [2006] EWCA Civ 1599 (and see paragraph 31 of the earlier directions judgment in this case (above)). Although the teach-in took place in private, that was helpful in facilitating a candid discussion. After the teach-in the scientific adviser did not participate in any way. Having the scientific adviser’s instructions settled by the court in advance and then making the written materials available to the parties afterwards ensured an appropriate degree of transparency. Overall, seen from the point of view of a reasonable fair minded observer, the interests of justice were served.

In this case, for reasons given in the directions judgment, the instructions to the expert did not engage with the issues, but rather explained what topics needed to be covered. In other cases there may be no reason to avoid the issues.

The second thing I wish to say, and this is the real reason for speaking at this stage, is that I wish to pay public tribute to Dr Weitemeyer. She worked exceptionally hard to produce comprehensive and useful materials. She was an excellent teacher who was able to explain some very difficult science in a clear way. Dr Weitemeyer is clearly an expert in her field. I am very grateful to her for her work.

I will make the order.