Electromagnetic Geoservices Asa (a company incorporated under the laws of Norway) v Petroleum Geo-Services Asa (a company incorporated under the laws of Norway) and Others

JurisdictionEngland & Wales
CourtChancery Division (Patents Court)
JudgeMr Justice Birss
Judgment Date13 January 2016
Neutral Citation[2016] EWHC 27 (Pat)
Docket NumberCase No: HC-2013-000099

[2016] EWHC 27 (Pat)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

The Royal Courts of Justice,

7 Rolls Building,

Fetter Lane, London EC4A 1NL

Before:

Mr. Justice Birss

Case No: HC-2013-000099

Between:
Electromagnetic Geoservices Asa (a company incorporated under the laws of Norway)
Claimant
and
(1) Petroleum Geo-Services Asa (a company incorporated under the laws of Norway)
(2) PGS Exploration (UK) Limited
(3) PGS Geophysical AS (a company incorporated under the laws of Norway)
Defendants

Mr. Adrian SPeck QC (instructed by Bird & Bird) for the Claimant

Mr. James Whyte (instructed by Bristows) for the Defendants

Mr Justice Birss
1

In this judgment I set out my reasons for making various orders at this hearing. The points to be covered are:

i) Experiments

ii) Scientific adviser

iii) Permission to call Dr Eidesmo

iv) Permission to amend the pleadings

2

In this action the claimant (EMGS) claims infringement of patent EP (UK) 1 256 019. The defendants (PGS) deny infringement and counterclaim for revocation. The trial is currently fixed for a window starting on 7 th March 2016 with a time estimate of 10 days plus 2 days pre-reading.

3

The patent is entitled " Method for determining the nature of subterranean reservoirs" and the claims relate to a method of finding hydrocarbons. Recognising that hydrocarbons can be oil or gas, I will refer to this as finding oil. Following a trial in June 2008 between EMGS and Schlumberger, Mann J decided that the patent was invalid ( [2009] EWHC 58 (Ch)) but on appeal, in a judgment dated July 2010, the Court of Appeal decided it was valid ( [2010] EWCA Civ 819). In that Schlumberger v EMGS action infringement was not in issue.

4

The Court of Appeal explained that the problem was how to find oil. At paragraph 13 Jacob LJ said that the solution of the patent could explained in a simple and general manner as being to use marine CSEM (Controlled Source Electromagnetic) surveying on a previously identified layer to find out if it contained oil. The layer could be identified by seismic methods.

5

The problem with seismic methods is that they rely on vibrations and while these can distinguish between solid rock and fluid (such as an oil or water bearing layer), if you find a fluid containing layer using seismic methods, those methods cannot tell you if the fluid is oil or water. However water and oil have different electromagnetic (EM) properties and so using an EM field may allow you to distinguish between the two. The claim is set out by the Court of Appeal at paragraph 14. The key parts of the claim for present purposes require the application of a time varying EM field to the subterranean strata, detecting the EM field response, seeking, in the wave field response, a component representing a refracted wave and determining the presence or nature of the reservoir identified based on the presence or absence of a refracted wave component. The claim also requires that the offset, that is to say the distance between the transmitter and the receiver, is given by a formula related to the wavelength of the transmission through the overburden. The claim has other words in it but it is not necessary to mention them at this stage.

6

So the claim calls for the transmission of an EM field and its reception and refers to "seeking, in the wave field response, a component representing a refracted wave". Figure 2 of the patent (see paragraph 30 of Mann J, cited by the Court of Appeal at paragraph 18) shows the refracted wave in a diagrammatic way. The figure shows the paths different "waves" from the transmitter can take to the receiver. The refracted wave passes along the fluid bearing layer. In very simplistic terms, at least in some circumstances, the point is that if the fluid is oil the EM energy represented by the refracted wave flows more strongly and faster through the oil bearing layer than the other waves which pass through the sea, other rocks and may be reflected by the sea floor. On the other hand at least in some circumstances, if the fluid in the layer is water, the EM energy represented by the refracted wave may flow less strongly and slower than the others. I should repeat that this is a very crude explanation and a key issue in the case is about whether, even if something like this crude explanation applies in some cases, it applies in others. Another issue is that this explanation is given in terms of waves. A point in the case is that while references to waves may be appropriate on the footing that the wave-like solutions to Maxwell's equations dominate because the relevant medium experienced by the field has very low conductivity (s), it may not be appropriate when the diffusive solutions to Maxwell's equations dominate because the medium has a high conductivity (low resistivity). Of course salt water has a high conductivity.

7

In parallel with this action is an action in Norway between EMGS and PGS relating to the Norwegian patent in the same family as this patent. In February 2015 the Norwegian Court found the Norwegian patent invalid for lack of novelty. That judgment is under appeal in Norway.

Experiments

8

In the Norwegian proceedings each side submitted evidence, including expert evidence, which included the result of computer modelling. An example of these models is a computer simulation of what happens when an EM field is applied to a simplified model of strata in which the resistivity of the layers varies in 1 dimension with depth. The results include plots of the amplitude and phase of the received EM field. Differences in amplitude can indicate whether the signal is stronger or weaker in given circumstances and differences in phase can indicate whether the signal is faster or slower. Other results of the simulations model the resulting energy flows by plotting the Poynting vector at different points. The Poynting vector describes the energy transport by propagation of an EM field. Its direction is the cross product of the electric and magnetic field vectors.

9

In October 2014 Norris J gave directions. These included directions for experiments. The directions order was in conventional form. A date for a Notice of Experiments was set (30 weeks before trial), a period for the other party to make admissions was given (7 days) and the order provided that:

"Where any fact which party wished to be established by experimental proof is not admitted that party shall apply to the court for further directions in respect of such experiments."

10

In July 2015 Mann J gave further directions. At that stage in July it was, I think, common ground that the computer modelling should be the subject of the regime for Notices of Experiments and the judge gave directions on that basis. In any event in Consafe v Emtunga [1999] RPC 154 (paragraph 16) Pumfrey J held that the procedure for Notices of Experiments should be used for the sort of finite element analysis computer modelling which was in issue in that case. In my judgment Consafe plainly applies to this case. The issues which arose today are a further illustration of why it is right that computer modelling and simulations should generally be subject to the experimental notice regime. The computer modelling in Consafe was different from the modelling in issue here but from the point of view of legal proceedings they create the same difficulties as any other experiments. The output from the modelling depends on the input and running the same test with different input data will or may produce a different result. So the choice of appropriate inputs to rely on is an exercise in judgment, which is what I understand Pumfrey J to have referred to in Consafe.

11

For a conventional scientific experiment in a patent case, such as one involving wet chemistry, the way to be sure that the experimental result relied on is genuinely what happens for a given set of initial conditions and circumstances, is to have a witnessed repeat of the experiment. This is also true with computer modelling: the way to be sure that the output is genuinely what happens for a given set of inputs is to have a witnessed repeat of the modelling run. It may be that the counter party does not need to see a repeat in a given case or that a repeat would be disproportionate but it is the availability of a witnessed repeat which is important. With computer modelling it may be that the need to have a witnessed repeat is removed by providing the totality of the input data and the computer software to the other party so that they can run the model themselves and see that the result is genuine. However that does depend on all the data and code being made available.

12

The directions in July 2015 set a staged timetable for Notices of Experiments, with one date in August and a second later date for the defendants to serve a further notice (if so advised) arising from any amendment to the claimant's Statement of Case on Construction, directions for which were also given in July.

13

In accordance with the directions the defendants served a First Notice of Experiments and a Second Notice of Experiments. One dispute had been whether the Second Notice was properly responsive to the amendments to the Statement of Case which were made. EMGS contended it was not although this point was not strongly pressed at the hearing. Following Mr Whyte's explanations about what the purpose of the experiments were, I am satisfied that the Second Notice complies with the July directions. The Second Notice includes tests which could have been done earlier but the significance of modelling energy flux (and the other modelling carried out) only came into focus following the...

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1 firm's commentaries
  • Educating The Judges – Balancing Knowledge And Fairness
    • United Kingdom
    • Mondaq UK
    • 30 Mayo 2019
    ...teach-in from a neutral scientific adviser, Dr Karen Weitemeyer. Directions for this were addressed in an interim judgment EMGS v PGS [2016] EWHC 27 (Pat), see in particular paragraphs 27-36. Dr Weitemeyer was provided with a set of brief instructions which were settled by the court. They c......

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