Electromagnetic Geoservices ASA v Petroleum Geo-Services ASA & Ors

In patent litigation, computer modelling and simulations used as experimental proof should generally be managed under the Notices of Experiments procedure. The notice must identify the facts the experiment is intended to establish and its role in the case; permission to rely on it is confined accordingly. A witnessed repeat is the normal safeguard, subject to proportionality and the availability of complete code and input data. Scientific advisers may assist with technical evidence, but the judge must retain the judicial function; a preliminary, non-controversial tutorial may suffice. Under the Civil Evidence Act 1995 and Civil Procedure Rules 1998, cross-examination of a hearsay maker under CPR r33.4 is confined to the statement’s contents unless wider permission is separately justified. Arguable patent amendments may be tried with the existing issues where practicable.

This was an interlocutory case-management judgment in a patent infringement and revocation action concerning a method of finding hydrocarbons using marine controlled-source electromagnetic surveying. The claimant sought directions concerning experimental computer modelling, appointment of a scientific adviser, permission to call the maker of a previous witness statement for cross-examination, and amendments extending its infringement case to foreign surveys producing deliverables offered or disposed of in the United Kingdom.

The judgment records earlier validity proceedings in Schlumberger v EMGS, where the patent was held invalid at first instance by Mann J in [2009] EWHC 58 (Ch) and held valid on appeal in [2010] EWCA Civ 819. The central issues were how the proposed evidence and amendments should be managed before the forthcoming trial.

1. Experimental evidence. Computer modelling and simulations used as experimental proof fall within the Notices of Experiments regime. Following Consafe v Emtunga [1999] RPC 154, the court held that the defendants’ modelling was subject to that regime. A notice must state precisely the facts the experiment is intended to establish and explain its role in the case. The permission granted is confined to proving those facts. The approach avoids the difficulty identified in Molnlycke v Brightwake [2011] EWHC 140 (Pat), where material produced for one purpose was later deployed for another. A witnessed repeat is normally the primary experimental evidence, although it may be unnecessary where complete code and input data permit independent repetition or where repetition would be disproportionate. The second notice complied with the directions. The defendants could rely on the experiments for the stated facts; EMGS had to respond, and directions were given for repeats and experiments in reply.
2. Scientific adviser. Section 70(3) of the Senior Courts Act 1981 and CPR r35.15 provide a basis for a scientific adviser to assist the Patents Court. As explained in Halliburton v Smith [2006] EWCA Civ 1599, the adviser assists the court in understanding and evaluating technical evidence, while the judge retains the judicial function. The court considered earlier examples in PCME v Goyen [1999] FSR 801 and Qualcomm v Nokia [2008] EWHC 329 (Pat). Applying the guidance in Nokia v InterDigital [2007] EWHC 3077 (Pat), it ordered a non-controversial introductory course, probably lasting no more than one day, from a marine CSEM expert. No scientific adviser was required to sit during the trial. Written materials supplied to the judge were to be provided to the parties.
3. Hearsay evidence. Permission was granted under CPR r33.4(2) to cross-examine Dr Eidesmo, but only on the contents of the hearsay statement, including matters going to credit. Section 3 of the Civil Evidence Act 1995 confers a wider power on rules of court, but CPR r33.4 exercises that power more narrowly. Wider cross-examination could be allowed under general case-management powers only after careful consideration of fairness and its procedural consequences.
4. Amendment. The proposed foreign-connection infringement allegations under s60(1)(b), s60(1)(c) and s60(2) disclosed an arguable case and could be accommodated at the trial. It was preferable to resolve the issues together rather than split them. Permission to amend was granted at EMGS’s risk. If further information proved necessary, the relevant issues could later be separated or dealt with by another appropriate order.

The judgment is a first-instance interlocutory decision. It records the following earlier stages in the same litigation:

1. Court of Appeal — the patent was held valid on appeal in [2010] EWCA Civ 819.
2. High Court — Mann J had held the patent invalid in [2009] EWHC 58 (Ch).
3. High Court (Patents Court) — the present judgment determined pre-trial applications concerning experiments, technical assistance, hearsay cross-examination and amendment of the pleadings.