The use of neutral experts in complex patent disputes

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Mr Justice Birss in the High Court has recently extolled the benefits of using a court-instructed scientific adviser in complex patent cases.

The patent in suit in Electromagnetic Geoservices ASA v Petroleum Geo-Services and others [1] concerned the use of controlled-source electromagnetism. The trial lasted 11 days much of which was taken up with “difficult physics and mathematics”. The case settled before judgment. The interesting aspect of the case is that the judge ordered a “non-controversial introductory course” on the physics and mathematics before he read into the case in detail. The course was a one-day teach-in from an expert and the purpose was to facilitate a quicker trial than would have otherwise been the case. As Birss J put it: “one cannot evaluate what one cannot understand”.

The teach-in took place in private away from the parties. To address issues around a lack of transparency, the expert provided copies of the written materials to the parties. The purpose of this was not to allow the parties to vet the materials in advance but to give them the opportunity to comment on the materials at trial if they so wished. The expert was not briefed on the issues in dispute between the parties.

Parties to litigation may be a little uneasy at this manner of proceeding given their loss of control and, notwithstanding the safeguards alluded to above, the inherent lack of transparency that a closed doors briefing by an expert will entail. Birss J, however, was fulsome in his praise for the expert and the assistance she had rendered. He emphasised that instructing an independent specific adviser in this way could allow a trial to proceed more expeditiously and thereby serve the interests of justice. This is a feature of patent litigation that we can expect to see more of.


[1] [2016] EWHC 881 (Pat)