Journal Article

Experts, experiments, and surveys: when things don't go to plan

Paul England, Marc Döring and Adrian Smith

in Journal of Intellectual Property Law & Practice

Volume 6, issue 4, pages 230-237
Published in print April 2011 | ISSN: 1747-1532
Published online April 2011 | e-ISSN: 1747-1540 | DOI:
Experts, experiments, and surveys: when things don't go to plan

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  • Arbitration
  • Intellectual Property Law


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Legal context and key points

Patent proceedings are inherently technical and will often require an experiment to be conducted at some stage in proceedings. But, experiments are notoriously unreliable in demonstrating what they are supposed to. This is because they are susceptible to both external factors, which are difficult to control, and the slightest human error.

Practical significance

The tendency of experiments to go wrong gives rise to two questions in practice: in principle can an opposing party see the work-up experiments to the final experiment served under the Notice; and, can the opposing party see the results of experiments that have been conducted but were abandoned without being served under a Notice? A similar issue affects survey evidence. If a survey is conducted the survey risks being criticised and any and all other surveys conducted may have to be produced. The law is difficult and inconsistent in these areas. An added complication is that the relevant law cross-refers between experiments and surveys. But there is a further difficulty. This is caused by the courts saying (most recently in Schütz (UK) Limited v Werit UK Limited, Protechna SA) that any experiment should be devised and conducted by the expert who gives evidence in relation to it. This article examines how, in addition to inconsistency, these rules actually cut across the profound issue of the right of a party to the protection of litigation privilege and create huge risks when conducting experiments and surveys.

Journal Article.  6167 words. 

Subjects: Arbitration ; Intellectual Property Law

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