Schlumberger Holdings Ltd (a Company Incorporated in the British Virgin Islands) v Electromagnetic Geoservices as (a Company Incorporated in Norway)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MANN |
| Judgment Date | 19 January 2009 |
| Neutral Citation | [2009] EWHC 58 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC07C01084/1487/1488 |
| Date | 19 January 2009 |
[2009] EWHC 58 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Mr Justice Mann
Case No: HC07C01084/1487/1488
MR. M. SILVERLEAF Q.C. and MR. H. CUDDIGAN (instructed by Freshfields Bruckhaus Deringer LLP) for the Claimant
MR. G. BURKILL Q.C. and MR. G. PRITCHARD (instructed by Lovells LLP) for the Defendant.
Hearing dates: 17 th, 18 th, 19 th, 20 th, 24 th, 25 th, 26 th, 27 th, 30 th June 2008 1 st, 2 nd, 3 rd, 22 nd, 23 rd, 24 th, 25 th July 2008
Approved Judgment
Introduction
This is a patent action whose subject matter is three patents (known in this action as the 019, 887 and 640 patents) relating to technology which is intended to be deployed in oil exploration. The technology is known as controlled source electro-magnetism or magnetics (“CSEM”). The proprietor of each of the three patents is the defendant, a Norwegian company (“EMGS”). The claimant (“Schlumberger”) is another company involved in (inter alia) oil exploration and it seeks the revocation of all three patents on the grounds of anticipation and/or obviousness. On the way important questions arise as to the identity of the skilled addressee to whom the patents should be taken as being addressed.
The technology and physics involved is complex to a layman and requires a grasp of some less than everyday science and mathematics. The parties have agreed that I should have the assistance of an expert adviser, and I have had the services of Professor Richard Bailey of the University of Toronto. He is a professor of geophysics, and instructed me in the background physics in this matter, so that I was then in a better position to understand the prior art and the expert evidence. He was also able to explain to me, in a non-partisan way, the meaning of some of the more technical material with which I was presented. His role was, of course, not judicial. It was to inform and educate on matters of science. He performed his role with great distinction (and, I might add, even greater patience), and the court is grateful to him for his assistance. If any of the science in this judgment is wrong then the fault is that of the pupil and not the teacher.
The scientific and physical background
In what follows I set out the background against which the patents in suit operate. I shall have to deal with some physics and geology. I shall do so in terms which are generally appropriate for describing those matters at a lowish level, and which will not be a full scientific description of the phenomena involved. A pure physicist may well find some of the description inadequate in scientific terms. I am sure it is. It will, however, suffice for present purposes. My adoption of this technique, and in particular my adoption of what may seem to the purist to be less than wholly accurate metaphor from time to time, does not necessarily betoken a failure on my part to understand accurately the actual physics involved. Nor does it betoken a shortage of evidence on a properly expressed scientific basis —I was certainly not short of that in this case. It is merely an appropriate way of setting out the background at this stage. The same applies, to an extent, in the later, more detailed, parts of this judgment. As will be seen, the adoption of metaphor has a precedent in the facts of this case —the central patent itself adopts a metaphor rather than an accurate description of the physics, and uses scientific terms in a manner which the scientists involved in this case accepted was technically inaccurate.
Those who drill for and extract oil obviously have a problem finding it because it is, in the main, found in layers under the ground, sometimes buried to a depth of thousands of metres. Layers of sedimentary rock which hold it have to be identified. At the end of the day only a test drilling of a promising site can demonstrate clearly that there is oil there, and whether it is worth the extra cost of extraction, but drilling is expensive, and the oil companies need to have sufficient reason to drill (in terms of evidence of a sufficient likelihood of finding oil) before doing so. The expense is greater if (as is sometimes the case) the potential sites are under the sea, and greater again if the layer of interest is in deeper as opposed to shallower water.
In regions in which those searching for oil are interested, the earth for several kilometres below the surface is made up of various layers. The trick is to find a layer which contains the oil. Unfortunately the layers vary enormously in their physical content, their lateral and vertical extent, and their boundary definition. Potential oil-bearing sites have to be identified, and the surrounding geology often has to be determined as well (for example, to determine the nature and extent of the layers through which one would have to penetrate to get to the oil-bearing layer). The techniques for identifying potential sites and the surrounding layers are various. They include a general knowledge of the geology which already exists (which can rule out large areas of the earth's surface), gravity measurements and seismic investigations. Seismics involves making something in the nature of a blow to the earth and measuring how the resulting effect is perceived at various distances (“offsets”) from the seismic event. There are two different techniques —reflection seismics and refraction seismics. Reflection seismics, described basically, assesses the received signal and detects the transmitted effect of the “bang” by detecting seismic waves which have apparently been reflected from the various layer boundaries. Refraction seismics benefits from the sensing of sound waves which have been refracted. Refraction occurs under some circumstances when the sound waves generated by the “bang” cross boundaries of substances with different properties. Under some conditions the wave is “bent” and then passes through or along the refracting layer at a greater speed than it passes through other layers. In those circumstances the refracted wave arrives at the receiver earlier than parts of the wave that have taken a different route (i.e. direct or reflected waves). It is identifiable to seismologists as being a wave that has taken such a route, and its presence reveals things about the structure below (when taken with the other information from the survey). Refraction seismics was the first standard seismic technique until some decades ago, when reflection seismics began to be important in the search for oil. The main use of refraction seismics in oil exploration has been for carrying out surveys on a wider rather than a more local scale —on a “basin scale”.
Although there have been significant improvements in modern times (including the introduction of 3D seismics in the 1980s), seismics does not provide a complete solution in the search for oil. It does not always give the detail and characterisation of sub-strata that an oil company would wish to have. It is sometimes useful to have a different “view” of what is down there. The more information that is available, the better. Under some conditions seismics cannot see everything that needs to be seen. Various other techniques are therefore used as well. One of them is, or according to the invention can be, the use of electromagnetic (“EM”) means.
EM has been used in various ways for the purposes of mapping aspects of the earth's substructure. At its heart it involves mapping electric or magnetic fields in the earth's surface. Those two fields are closely related as a matter of physics. For present purposes I can ignore the latter and concentrate on the former. In that context electric fields are used to determine and map the resistivity of the sub-surface structures, and thereby enable the observer to draw some conclusions as to their structure and character. The substances which make up the sub-surface layers and structures (and indeed all substances) have differing resistivities, that is to say that they vary in their capacity to conduct an electric current. Air is highly resistive, or to use a counterpart expression, it is highly non-conductive. It hardly conducts current at all. Electric fields behave in the opposite fashion —they are able to pass through or penetrate resistive material with less attenuation than if they were passing through conductive material. Thus an electric field will be able to pass farther (and indeed faster) through air (which is resistive) than through metal (which is highly conductive).
These properties can be used by those interested in the earth's structures. Those people include what have been called in the context of this case “solid earth geophysicists” (those interested in studying the earth's structure for what might be called academic purposes) and “exploration geophysicists” (those interested in using geophysical techniques and studies for the purposes of practical exploration for substances including, but not limited to, oil and other hydrocarbons). It is unnecessary to set out an extensive catalogue of the manner in which use of EM techniques can be made by those groups, but one or two examples will be helpfully illustrative. Other examples will appear in the consideration of the prior art below.
Electric currents are induced to flow in the earth's structure by currents which have been made to flow in the ionosphere, which are in turn made to flow by solar activity. The currents in the earth can be...
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