Has the Patent Been Infringed
116The plaintiff submits in the alternative that the MRD does in fact infringe the Patent. The defendant says that the MRD does not use the technology or act in "accordance with" the invention described in the Patent because the MRD is not a sensor or a sensor unit, and it does not store or transmit load protection data to the relay.
117It will be necessary to return to some of the evidence and resolve the conflicts I have earlier referred to.
118There is no dispute on the expert evidence that it is only in sending, as it were, the third signal which requires the device to perform as a sensor. The plaintiff relies upon Mr Ellis, its expert, who said that it was called a "sensor" in the other claims in the Patent because it does function as a "sensor" in the best mode of invention.
119Of course s 40(2)(a) of the Patents Act 1990 requires that the specification give full description of the invention including the best method known of performing the invention. This provision was considered by the High Court in Firebelt Pty Ltd v Brambles Australia Ltd (2002) 76 ALJR 816. At [57], the High Court in a joint judgment affirmed the correct approach of the Full Federal Court and the trial judge. As the Full Federal Court commented in Firebelt Pty Ltd v Brambles Australia Ltd [2000] FCA 1689 at [48]:
[48] This holding by the primary judge involves, in our respectful view, a misunderstanding of what is required by s 40(2)(a) of the Act concerning a description of the best method known to the applicant of performing the invention. In Vidal Dyes Syndicate Ld v Levenstein Ld (1912) 29 RPC 245 in the Court of Appeal, Fletcher Moulton LJ said at 269:
"It is settled law that a patentee must act towards the public uberrima fide, and must give the best information in his power as to how to carry out the invention. He is therefore bound to tell the public all the steps that can advantageously be taken in carrying out the invention. But he is not limited to claiming only the best way of carrying it out."
This requirement is to ensure good faith on the part of the patentee, and to protect the public against a patentee who deliberately keeps to himself something novel and not previously published which he knows of or has found out gives the best results, with a view to getting the benefit of monopoly without giving to the public the corresponding consideration of knowledge of the best method of performing the invention.
120A patentee is not of course limited to making a claim as to the best method of performing the invention, but that at least needs to be done. The need to disclose is really an act of good faith on the part of the patentee to disclose the best method known to the patentee of performing the invention. The public is entitled to know all the patentee knows. But the best method is just that. It is the price of statutory monopoly, but it is not the only way a device, for example, can be used.
121Whilst both parties accept that the construction of the Patent is ultimately a matter for the court I have been helpfully referred to the evidence of the respective witnesses on relevant aspects.
122The plaintiff points to the evidence in chief of Professor Blackburn, when, on the one hand, he said load protection data meant "the full set of all of the protection characteristics setting and the current time characteristics for overload". It is just everything associated with the load protection requirements according to Professor Blackburn. In addition, the whole of the load protection data that is being referred to is not just a number of settings but the whole of the relevant data, including all of the earth leakage characteristics, the overload characteristics, short circuit characteristics and not just the settings that are used but the whole of the timing that is involved with many of the items of equipment. The plaintiff submits that he further expressed the view that the whole range of information that relates to the protection operation of the system should be regarded as load protection data, not just the single value settings. He otherwise described this as a "very large range of information" or "a large expanse of data". It was not just a single code sent by the MRD to the relay. The plaintiff submits that Professor Blackburn also asserted that neither the MRD nor SP Node transmit "load protection data" to the controller/relay but merely transmit a "code" or "pointer" which is not the full set or the whole of the protection data which is stored in the controller and not the Node. In other words, the MRD in essence stores and transmits "codes" which allow access to the data which is stored in the protection module and the activation of a particular protocol for the module.
123Consistent with that view he disagreed that the devices described in claims 1 and 2 of the Patent were the MRD or SP Node, because "they don't store the load protection data" because it is "not a full load protection data". The plaintiff points out however, that Professor Blackburn nonetheless conceded that the data transmitted from the MRD/SP Node to the controller was all directly or indirectly associated with load protection. It is submitted that Professor Blackburn gave inconsistent evidence in chief and in cross examination, and accepted variously that load protection data could mean any information associated with load protection; equally it could mean the set of values or single value which determine or determines the requirement for a module to operate; and seemingly that some load protection data associated with that is a "single value". It is submitted by the plaintiff that for these reasons, but importantly because of his change of position, most relevantly on the eve of the trial, I should find that his explanation was not plausible and that it reflected poorly on him as an expert.
124The plaintiff submits that the sum total of Professor Blackburn's evidence really involves an assumption that in order to infringe the Patent, the MRD must do all things that the Patent describes (that is infringe claims 1, 2 and 3) and that this is a fallacious proposition. It is submitted that fairly and or reasonably understood, Professor Blackburn's evidence would involve the transmission by the MRD to the controller of a single value as involving a transmission of "load protection data".
125The plaintiff invited me to accept Mr Ellis' evidence on this point. He disagreed with Professor Blackburn and was emphatically of the view that the method of communication of data by the MRD, albeit by code, satisfied the requirements of the Patent and "load protection data". The plaintiff submitted that the Patent contained no clear definition of what is to be transmitted as "load protection data". Rather, all the Patent does is to give examples of the type of information that are "load protection data". Importantly the plaintiff submits the Patent does not rule out transmission of the first signal or "load protection data" by code.
126The plaintiff submits that a sensible reading of the Patent leads to the inevitable conclusion that all that was to be transmitted by the device to the relay was a message that allows the load protection data to be communicated from one to the other. There is no reason why this transmission cannot occur in code. It is further submitted by the plaintiff that Mr Ellis and Professor Blackburn agreed that a code is really just another type of language.
127On a proper construction of the Patent therefore it is submitted one should not, as Professor Blackburn did, use the second and/or third signals in order to read down the meaning of "load protection data" as it is first introduced into claim 1 of the Patent. The second signal, it is submitted, is sent by the controller to the switch gear to isolate the load from a power source and does not involve the MRD but rather the protection settings in the controller which were originally determined by the first signal sent by the MRD.
128Again I am invited therefore to prefer Mr Ellis' view and hold that "load protection data" in the Patent, especially claim 1, means any information directly or indirectly associated with load protection including any single value which determines the requirement for a module to operate. It should not be construed so as to mean the "full" or "whole" set of data as asserted by Professor Blackburn.
129It is submitted that the MRD and SP Node clearly store and transmit load protection data to the controller. It follows therefore that the MRD is a product that can be used "in accordance with the invention described in the Patent" within the definition of sensor in both the deed and licence agreement. The MRD therefore is also a product which is used or otherwise exploited in breach of clause 4.1(h) of the Deed and in breach of clause 14.1 of the Agreement. I think that argument has much force.
130The defendant on the other hand submits that by reason of the third limb of the definition to be sensor a device must be:
a. a sensor unit within the meaning of the patent;
b. be used with the controller of the invention of the patent; and operating together with such a controller must have the attributes of the invention of the patent.
131The defendant submits that the third limb, as it were, of the definition is self evidently concerned with Patent infringement. It is submitted that it is the components of the particular load control module invention of the Patent with which the definition of sensor is concerned. It is submitted that it is an irrelevant matter that the plaintiff in mid 2012 now accepts that the Smarty Node is not a "sensor" and since the term "sensor unit" (in the Patent) employs the same meaning of a sensor it follows that the Smarty Node cannot be used in accordance with the invention described in the Patent.
132The defendant submits that although the MRD works with the CPM1-Plus module it means no more than that. The evidence, it is submitted, does not establish that the CPM1-Plus module has the attributes of the controller of the invention of the Patent, nor that together that module and the MRD are the load protection module of the invention.
133It is also said that the Patent is in a standard form that is for one invention, a load control module fully described in the body of the specification. It is the same load control module in each claim. It is submitted therefore that the term "sensor unit" refers to the same unit forming part of the invention in each claim in which the term appears. The mere fact that in claim 1 there is no requirement to produce a third signal as is required in claim 3, it is submitted, does not change what is meant by the term or have the consequence that the sensor unit of claim 1 is a different device to the sensor unit of claim 3. It is submitted that the plaintiff's argument that the sensor unit of claim 1 is not a sensor, while accepting that the sensor unit of claim 3 (and that described in the description of the invention in the body of the specification) is a sensor unit in its ordinary technical meaning, cannot be accepted. The defendant submits that that is simply contrary to a proper construction of the Patent.
134It is submitted on behalf of the defendant that, as required by paragraph 40(2)(a) of the Patents Act, the specification describes the invention fully. The sensor unit is diagrammatically depicted in item 9 in the drawing and is described including its operation as a component of the load control module. It is submitted that the specification requires that the "sensor unit" must be a sensing device. The Patent does not contain any dictionary to give to the term "sensor unit" any different meaning than its ordinary technical meaning.
135It is submitted that the Patent should not be construed so as to encompass two sensor units, one that senses and one that does not. It is submitted for that to be so, clear language would have to be employed so as to distinguish two devices. It could also be confusing to say the least, the defendants submit, insofar as both were called sensor units. The defendant invites me to reject Mr Ellis' position, as he suggested in his evidence there was a "reduced implementation" of the invention where model 9 does not actually sense anything, it does not generate a third signal but is still subject to claims 1 and 2 of the Patent. The defendant submits that there cannot be a "reduced implementation of a invention", as the Patent claims must claim the invention of the Patent as required by section 40 of the Act, not some reduced implementation thereof.
136It seems to me however the mere fact that claims 1 and 2 do not require the sensor unit to produce a third signal simply means that to come within claims 1 or 2 it is not necessary for there to be a periodic communication by the sensor unit of the third signal as required by claim 3. It does not follow that the sensor unit is other than a device within the invention described in the Patent.
137However the defendant contends that the patentee would have used different wording in those claims (1 and 2) distinguishing the devices in the different claims by for example omitting the word sensor and merely using the word unit. The defendant also submits that the patentee did not take that course and it should be held that it deliberately chose (no doubt on advice) the particular description of the load controlled module (and its components). I think that is requiring too strict an approach to the words used.
138In my view the evidence does support that the MRD was designed to work with the CPM1-Plus module and the particular firmware. The mere fact that the term "sensor" is used for example in claims 1, 2 and 3 does not, it seems to me, point to any inconsistency in usage. Whilst it has been agreed the term "sensor" is a misnomer in claims 1 and 2, no one skilled in the relevant art e.g. Professor Blackburn or Mr Ellis has been confused by that. The evidence is that, clearly and reasonably understood, the functions described in claims 1 and 2 do not involve sensing, whereas claim 3 does. In other words to apply the approach to construction suggested by the defendant is in my mind to approach the exercise in an excessively pedantic or literal manner.
139It seems to me that it is not necessary that the word "sensor" be construed as requiring the same meaning in claims 1, 2 and 3, for example, when the context suggests otherwise to persons relevantly skilled. It does perform sensing functions in claim 3, the best mode of invention, and it is obvious to those with the requisite expertise that it does not include 1 and 2 for example. Meticulous verbal analysis is out of place in this context.
140The defendant however in addition, and unsurprisingly, relies upon Professor Blackburn's evidence to the effect that the MRD does not transmit "load protection data" to the CPM1-Plus module, it merely transmits "a number, a pointer, an index" which will on receipt by the controller "bring up the load protection data that is stored in the controller". It is submitted, correctly in my view, by the defendant that Mr Ellis agreed that all the MRD transmits is a coded value although his evidence which I have dealt with earlier asserts that it is nonetheless properly characterised as load protection data.
141The defendant points to concessions made by Mr Ellis in cross examination, namely that his testing in both his first and second reports (February and April) demonstrated nothing more than his external observations of a change in voltage. He did not see or read the content of any communication, merely the external fact of a communication occurring. He could conclude nothing more than that changes of voltage had occurred. The defendant submits, I think again correctly that the first and second reports of Mr Ellis are of limited utility. Mr Ellis' third report is confidential and was only concerned with input into the CPM1-Plus module.
142But this is not a case about the validity of the Patent, nor is it a case about the novelty of the firmware. It is a case (in part) about what the Patent means.
143The sending of the code (message) is a signal for the purposes of the Patent. Whether it is sent in one code as opposed to another, is, it seems to me, of no moment from the point of view of construing the Patent. It is also immaterial from the express words of the Patent whether the signal is digital or analogue.
144The whole purpose of the communication via a signal (whatever is entailed in the signal) is to permit the invention to work prophylactically so no overload occurs which could otherwise create a safety issue. It only works if load protection data is communicated, hence if the message is received and understood, as such, that is what matters.
145Professor Blackburn did say that load protection data could mean "any information associated with load protection": (T49). He did purport to however qualify that. Of much greater significance is that he had agreed at the expert's conclave with Mr Ellis that load protection data means "the set of values or a single value which determine or determines the requirement for a module to operate," (T74). He, it seems, held that view over four drafts which he accepted he had carefully reviewed, before making changes to his report on 22 June. He also gave evidence in cross examination that some load protection does have single values.
146Professor Blackburn was, it seems, quite prepared to agree or acquiesce with Mr Ellis until it seems Friday 22 June (just before the start of the trial). But he then decided (as he put it) to change the way in which he described load protection data. That was something he always knew but nonetheless it was not, until the eve of trial, something he was provoked to disagree with Mr Ellis about. He did not for example suggest it was an oversight, which might have been difficult for him given his other evidence.
147I do not accept Professor Blackburn as a reliable expert. My impression having observed him when he gave his evidence, and especially when he was asked to explain his change of stance, is that he was really unable to provide a plausible explanation for the change. I cannot accept that an expert with his qualifications and experience would, or more to the point, could sit by unprovoked by many drafts and not correct something as important as this matter until the very last minute as is the case. It does not reflect well upon him and his non-existent explanation for the late change causes me not to have confidence in his evidence on this issue.
148I prefer Mr Ellis's explanation which I believe in any event best accords with the evidence as a whole. I should in passing on that point observe that Mr Hollands agreed in cross examination that the information given to the node by the controller and the material from the node to the controller was "load control data" or "load information" (TT37[25] and TT40[34]). At T37 he gave the following evidence:
Q: It is dumb in the sense that it can receive and store information, if that information is given to it by a controller?
A: Yes
Q: It can then, if plugged back into that controller, tell the controller that information?
A: Yes
Q: And that's the load control data?
A: That's the load control data
149I regard it as significant that the Patent, whilst it speaks of signals and communication of messages, nowhere does it proscribe the manner in which the messages are communicated, whether analogue or digital. What is important is the communication of load protection data or what the controller interprets as such so the system can ensure there is no overload.
150The precise type of the message or code is, it seems to me, irrelevant. I am satisfied that both devices participate in a similar fashion in communicating the message or code which conforms with the description of load protection data and (as I have said on that issue) I prefer the evidence and explanation of Mr Ellis.
151As I have already said, I am also able comfortably to find the differences between the MRD and the SP Node are immaterial and that they do the same thing in the same way. Neither device "senses" in the ordinary usage of that term, and there is no doubt (and again I find) they were designed to work and do in fact work with either version of the firmware in the respective controllers. Even Professor Blackburn described the MRD as a "later version" of the SP Node (CB1/244).
152Upon a proper construction of both the Deed and Agreement I consider the better view is that, by use of the term "Sensor" in the definition in each of those documents, the parties objectively intended to mean at least the SP Node the subject of the Federal Court proceedings. There is no doubt the Deed and/or Agreement was to prevent and/or restrict the defendant from selling that device.
153It is also clear that although the SP Node was never branded as a "sensor", the Patent in claims 1 and 2 describes the node as a "Sensor", which is a misnomer. It is only when the device is used in accordance with claim 3 that it operates as a sensor. Mr Ellis, who I accept on this issue, said in his evidence that module 9 (the device) in the Patent is called a "Sensor" because in the best mode of invention, it is just that. This in my mind is clearly what the parties were at least adverting to by use of the phrase "in accordance with..."in the definition of "sensor" in the Deed and Agreement.
154I am also satisfied on the basis of the evidence of Mr Ellis which I accept, that the method of communication of data by the MRD, albeit by code, satisfies the requirements of the Patent and the term "load protection data".
155The Patent should be construed so that all that was to be transmitted by the device to the relay is a message that allows load protection data to be communicated from one to the other by whatever means may be devised. I consider the better view (and again I accept Mr Ellis) that "load protection data" in the Patent, in particular claim 1, means any information directly or indirectly associated with load protection, including any single value which determines the requirements for a module to operate including the initiation of the second signal. It is not necessary on my findings that it has to be the "full" or "whole" set of data. In my opinion the MRD and SP Node clearly store and transmit "load protection data" to the controller as described in claim 1 of the Patent.
156It again follows that the MRD is a device which can be used "in accordance with the invention described in the Patent", and is thereby for the reasons I have otherwise explained, a device within the definition of the "Sensor" in the Deed and Agreement.
157It follows in my opinion that the defendant is in breach of clause 4.1, 4.2 of the Deed and clause 14.1 of the Agreement. The MRD is a device therefore that can be used "in accordance with the invention described in the Patent" (within the definition of "Sensor" in the Deed and Agreement).