Patent litigation in the English courts can be a bit of a see-saw, with experts from either side weighing in with their own perspective on technical matters. The judge must then make a choice between their views and come up with what he or she feels is the right answer.
In a recent case involving a patent for the use of “controlled-source electromagnetism” in searching for sea bed oil reservoirs the judge decided that he needed a “teach-in” from a neutral scientific adviser. The subject matter was complex, involving questions of 3D vector calculus and imaginary numbers.
He clearly found the project a useful one, and commended Dr Karen Weitemeyer for being “an excellent teacher who was able to explain some very difficult science in a clear way.” He said that time and cost had been saved.
Although differences of opinion in scientific matters is a normal part of the process it does cause the judge some difficulty in patent cases. Indeed, partisan experts have been heavily criticised in patent cases, as explained by Arnold J in Medimmune v Novartis:
“The law reports are littered with cases, including some patent cases, in which judges have criticised expert witnesses for failing to be objective or in other ways. It is regrettably true that from time to time an expert witness does succumb to the temptation of giving partisan evidence, and that is clearly unacceptable.”
Although here the parties settled (although not before an eleven day trial with expert evidence from either side) the use of the neutral scientist teaching the judge in private gives pause for thought. Might we expect to see more of this? And how will parties feel about a one-to-one discussion of the case between the judge and a single scientist whose views might not correspond with their own?
Does this look a bit like what we expect from the long-anticipated Unified Patent Court? The UPC will employ about 50 technical judges alongside a similar number of legally qualified judges.
Presumably the technically qualified judges will be able to fulfil the need for scientific expertise in most cases. Although one wonders whether their views will have undue weight, especially in more complex fields.