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a reminder from the High Court to consider using neutral experts in complex patent disputes

27 April 2016

In an unusual post-settlement judgment in Electromagnetic Geoservices ASA v Petroleum Geo-Services ASA and others, Mr Justice Birss took the opportunity to expound the virtues of a court-instructed scientific adviser.

The patent in issue concerned the use of controlled-source electromagnetism and was the subject of an 11-day trial involving “difficult physics and mathematics”. In order to assist the court in understanding the experts’ opinions and, importantly, the basis of and reasoning behind their opinions, the court settled brief instructions to an independent scientific adviser. With a day-long teach-in conducted in private before trial, Birss J asked candid, technical questions of a neutral expert who had not been told about the issues at trial. Afterwards, the materials used at the teach-in were disclosed to the parties.

Although the parties settled the case after the hearing, Birss J handed down judgment simply to state that, in particularly complex, technical matters, the prior instruction of an independent scientific adviser by the court could allow a trial to proceed more expeditiously and serve the interests of justice.

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