Consideration
28 With respect to category 2(b), Upaid submits that documents limited to "interface specifications and architecture/solution definition documents" will not provide all details of the transaction chain, specifically, the information exchanged in relation to the transactions involving users who purchase, subscribe to or use MOG Services, and Daisy, LLC (which provides MOG) or any other party involved in providing MOG Services.
29 There is no dispute about the relevance of the documents being sought, only whether the documents in this category should be as Telstra has described them or as Upaid has described them. It is not clear to me what the words "procedures" or "protocols" would add to the general description "interface specifications and architecture/solution definition documents". I would expect that Telstra's description of "interface specifications and architecture/solution definition documents" would itself cover the subject matter specified in category 2(b) to the extent required to address the level of generality at which the methods claimed in claim 1 of each patent have been expressed.
30 I am not persuaded, therefore, that Upaid's description usefully adds to Telstra's description, for relevant purposes. I also bear in mind that Upaid seeks to interrogate on the subject matter of this category. Therefore, the category 2(b) documents should be for "interface specifications and architecture/solution definition documents" relating to the described subject matter.
31 With respect to categories 2(c) and (d), Upaid accepts Telstra's qualification, with the further qualification that the payment or purchase referred to should be extended to payment or purchase by debit card or via an application on a mobile device or handset. I am not persuaded that, in these categories, the further qualification should be made. In its pleaded case, Upaid draws no distinction between debit and credit card facilities provided by financial providers or payments or purchases made via an application or a mobile device or handset. Therefore, the category should be confined as Telstra submits in this regard.
32 With respect to category 3, Upaid submits that documents described as "interface specifications and architecture/solution definition documents" will not provide sufficient information. It submits that such documents will not provide details of "the end-to-end functionalities of Telstra's systems" and how they operate from a network point of view as opposed to a user-interface point of view.
33 It is not clear to me why this is so. Upaid's submission is not supported by any technical (or, indeed, other) evidence explaining why "interface specifications and architectural/solution definition documents" will not provide adequate discovery, seen, once again, against the generality in which claim 1 of each patent is expressed, but also against the evidence proposed to be given by Telstra's witnesses on this subject (which, at this stage, Upaid has not sought to answer), and the interrogatories that Upaid seeks to administer. It seems to me that Upaid's requested category is in the nature of "fishing".
34 Moreover, the words "All Documents recording or evidencing …" are problematic when sought to be applied to "any interface, communication, notification, functionality, exception handling, transaction record, reconciliation method, process, rule or procedure …" relating to the particular subject matter identified in category 3. The words "recording or evidencing" are of great breadth and no proper foundation has been laid for discovery of that breadth. In oral submissions, Upaid suggested that the words "recording or evidencing" could be replaced with "describing". I would expect that this substitution would certainly cut down the number of documents that might be caught, but, even so, I am unpersuaded that the discovery which Telstra has proposed is inadequate or that Upaid has laid any proper foundation for any broader discovery. Therefore, category 3 should be for "interface specifications and architecture/solution definition documents".
35 Upaid accepts that the category 3 documents should relate to the purchase of a MOG subscription. However, it submits that the category should also include "the use of MOG Services". It says that this should be so because, with respect to the infringement of claim 1 of the 646 patent, it has particularised three types of infringement (types 1, 4 and 5) in respect of which it has alleged that Telstra has adjusted an associated user account for usage charges associated with the request and provision of a product, using rating engines for dynamically calculating usage charges. This allegation relates to the "charging" step referred to in claim 1 of the 646 patent. Upaid alleges that the usage charges are adjustments for amounts of value, time, data, volume or other adjustments which are made in accordance with Telstra's terms applying to the provision, use or the provision and use of products. In light of this allegation, it seems to me that the category 3 documents should also encompass those relating to the use of MOG Services, as Upaid seeks.
36 As to the rider that Upaid seeks with respect to the category 3 documents, I am not persuaded that Telstra should be put to the trouble of discovering documents when Upaid has sought to interrogate on whether other systems (i.e. beyond those about which Telstra's witnesses propose to give evidence) are involved in the relevant processes. To the extent to which those interrogatories have been allowed, they should provide the information to which Upaid is entitled. To the extent the interrogatories have not been allowed, it is because they travel beyond the pleaded case and are "fishing". Thus, to that extent, the discovery of documents would not be permitted in any event.
37 I do not propose to allow discovery in respect of the category 3(h) documents. I am unable to see how this category is directly relevant to the issues raised by the pleadings. Upaid submits that category 3(h) is relevant to determining whether any of the systems mentioned in the Process of Purchasing MOG Flowchart (provided by Telstra) interact with any other systems which are not described in the affidavits of Telstra's proposed witnesses. In my view, expressed at that level of generality, both Upaid's submission and, consequently, category 3(h) smack of "fishing".
38 With respect to category 4, the documents should be "interface specifications and architecture/solution definition documents", for the reasons I have given with respect to my ruling in relation to the category 3 documents. Similarly, the category 4 documents should not be subject to the rider concerning whether an interface communication or notification occurs via another system or systems, given, once again, that appropriately allowable interrogatories will be directed to that issue.
39 With respect to category 5, the issue between the parties is, once again, one of scope. Upaid submits, as it did with the category 3 documents, that "interface specification and architecture/solution description documents" will not provide details of "the end-to-end functionalities of Telstra's systems". It submits that it requires all documents describing information exchanged between Telstra systems in relation to metering. I am unable to accept that submission. Once again, I have not been provided with any sound reason or basis for concluding that "interface specification and architecture/solution description documents" of the kind referred to by Telstra will not provide adequate discovery in relation to the means or process by which any relevant system determines whether or not to meter a data session relating to the purchase, subscription or use of MOG services by a user. It seems to me that, once again, Upaid's request is in the nature of "fishing".
40 With respect to category 7, Upaid disputes that the category is redundant in light of the documents it has sought in category 2. The reason that Upaid argues that category 7 is not redundant is that, according to Upaid, category 7 goes to "the interactions between the systems of Telstra and financial providers". It says that these interactions may not be recorded or evidenced in "overarching documents" dealing with the relationship between Telstra and a financial provider. It says, however, that it will not press this category if Telstra confirms that there are no documents caught by category 7 that would not also be caught by category 2.
41 It seems to me that the category 2 documents do go, in terms, to the relationship between Telstra and a financial provider. Upaid has not advanced a sufficient reason for seeking the category 7 documents over and above the category 2 documents. Once again, category 7 appears to be in the nature of "fishing". Moreover, I do not think that Telstra should be embarrassed by placing upon it the obligation to discern differences between categories 2 and 7 when such differences are not manifest. I am not persuaded, therefore, that discovery should be ordered in respect of the category 7 documents.
42 With respect to category 8, Upaid submits that payments by credit card are clearly relevant to its pleaded case. It argues, therefore, that credit card and transaction processing fees are relevant documents to be discovered because, it says, Telstra will only authorise a transaction to proceed if the applicable credit card surcharge is paid.
43 Although in its written submissions Upaid submits that this category is relevant to claim 1 of each patent, in fact the only submissions it advances are with respect to claim 1 of the 853 patent. It submits that category 8 is relevant to the integers of determining the payment rule and applying the payment rule for authorising the transaction.
44 I am not satisfied that the payment rule contemplated, for example, by paragraphs 1.7, 1.8 and 1.9 of Upaid's statement of particulars with respect to the alleged infringement of claim 1 of the 853 patent does comprehend a rule that is not just for payment of the product itself but also for payment of credit card fees which Telstra might seek to pass on to its customer. This is because paragraph 1.8A of the statement of particulars speaks of Telstra verifying with a financial provider that the amount owed to Telstra - meaning the amount owed to Telstra by application of the payment rule - will be paid by the financial provider. Paragraph 1.9 speaks of charging the authorised user's account in accordance with the payment rule. Paragraph 1.11 of the statement of particulars speaks of Telstra settling charges to the authorised user's account by recording that the obligation to pay Telstra will be discharged by the financial provider. Those particulars do not contemplate any payment rule or settlement rule that concerns an amount other than an amount that a financial provider will pay to Telstra or an obligation to pay that will not be discharged by the financial provider. Thus, the particulars do not contemplate a credit card fee which Telstra is charged by a financial provider and which Telstra seeks to pass on to its customer.
45 For these reasons, it seems to me that the documents sought by category 8 do go beyond Upaid's pleaded case, as Telstra has submitted. I do not propose to allow category 8.