Electromagnetic Geoservices ASA v Petroleum Geo-Services & Ors

In technically complex patent litigation, a court may obtain assistance from a neutral scientific adviser to improve its understanding of the underlying science. The exercise must be proportionate, transparent and fair. Appropriate safeguards include settling the adviser’s instructions in advance and providing the parties with the materials used. A private teach-in may be proper where the adviser does not participate in the trial or advise on the issues. Time spent enabling the judge to understand the technical material and the reasons for competing expert opinions may save time and cost overall.

The claimant alleged that the defendants infringed, and the defendants challenged the validity of, a patent concerning controlled-source electromagnetism used in searching for offshore oil reservoirs. The 11-day trial involved difficult physics and mathematics. Before judgment was completed, the parties settled the proceedings.

The court nevertheless gave judgment because the use of a neutral scientific adviser before trial raised a procedural issue of wider interest. The central question was whether such a teach-in could assist the court while preserving transparency and the parties’ right to a fair hearing.

1. Settlement and disposition. The proceedings were settled before judgment on the patent issues was completed. The court therefore made the order consequential on settlement and did not determine infringement or validity.
2. Use of a scientific adviser. In a technically difficult patent trial, a neutral scientific adviser may assist the judge in acquiring the necessary understanding of the technology. The adviser’s role is educational. The adviser must not decide the issues or participate in the trial after the teach-in.
3. Importance of expert reasoning. The court must understand both the experts’ opinions and the material and reasoning underlying them. It cannot properly evaluate technical evidence which it does not understand. In appropriate cases, a preliminary educational exercise may enable the trial to proceed more efficiently and proportionately.
4. Transparency and fairness. The private nature of the teach-in did not itself make it unfair. Here, the court settled the instructions in advance, the instructions addressed general scientific topics rather than the issues in dispute, and the written materials were subsequently provided to the parties. Those safeguards gave the exercise an appropriate degree of transparency and served the interests of justice, consistently with the approach recognised in Halliburton v Smith [2006] EWCA Civ 1599. In other cases, there might be no reason to exclude the issues from the instructions.