Electromagnetic Geoservices ASA v Petroleum Geo-Services & others, UK, High Court (Patents Court), Birss J, 19 April 2016

This judgement arose in the context of a patent dispute concerning European Patent (UK) 0256019. The trial took 11 days in the Patents Court. The parties settled the proceedings shortly before judgement. As a result ordinarily no judgement would have been issued. However, the judge decided that a judgement commenting on one specific procedural issue should be issued.

Before the trial the judge had the benefit of a “teach-in” session with a neutral scientific adviser. The adviser was provided with a set of instructions which were settled by the court consisting of a set of primers on technical aspects of the case as well as extracts from the parties’ expert reports. The “teach-in” took place in private (i.e. in the absence of the parties) and after that the scientific adviser did not participate any further in the trial. Written materials provided at the “teach-in” were made available to the parties afterwards.

In the judgement the judge commented with approval on this approach, noting that although the judge considered that the court would have reached the same level of understanding in the absence of such a “teach-in”. The process was a useful one which assisted the judge in reading into the case and allowed the case to proceed more briskly than would have been the case that no such “teach-in” had been available.

The approach to the “teach-in” had been settled at an earlier case management conference (previously reported on the EPLAW Blog here as a compromise position between having a technical advisor present throughout the entire trial or no technical advisor being present at all.

The case emphasises that although in general technical advisors are not utilised in UK patent litigation, the judge having previously noted at the case management conference that  ordinarily even the most technically complex cases could be handled by the category 4/5 patent judges (the most experienced and technically qualified judges) in the absence of any technical advisers, they do have their place when the court is dealing with highly complex technology and the court will take a flexible and pragmatic approach to the extent of their use when technical advisors are included as part of the proceedings.

A copy of the judgement can be found here.

Headnote: Nicholas Fox, Simmons & Simmons