Vringo Infrastructure Inc v ZTE

The patents 13 The patents are concerned with aspects of wireless telecommunications systems, which include mobile stations (i.e. user equipment) that communicate by radio waves with base stations. Base stations are items of infrastructure (such as telecommunication towers) that form part of a network that is, ultimately, interconnected with the global telephone network and the Internet to provide voice and data transmission services to the user equipment.

The 893 patent 14 The 893 patent relates to the control of resources (e.g. power, frequency, channel codes) in a wireless telecommunications system involving High Speed Downlink Packet Access (HSDPA). The term "packet" refers to the transmission and reception of "packets of data". The term "downlink" refers to the transmission of data from a base station to user equipment. The term "uplink" refers to the transmission of data from user equipment to a base station. 15 HSDPA uses physical radio channels to enable a base station to communicate wirelessly with user equipment. It is implemented on top of an existing service known as Wideband Code Division Multiple Access (WCDMA), which also uses physical radio channels to enable a base station to communicate wirelessly with user equipment. WCDMA remained in operation when HSDPA was implemented. As a consequence, it became necessary for the two services to share resources that, previously, had been allocated to the WCDMA service alone. 16 The complete specification of the 893 patent identifies the following problem: An HSDPA connection includes a high speed physical downlink shared channel (HS-PDSCH) for data packet transfer and a high speed dedicated physical control channel (HS-DPCCH) for uplink signalling. The HS-PDSCH and the HS-DPCCH are implemented on top of WCDMA (Wideband Code Division Multiple Access) dedicated channels, such as the DPDCH (Dedicated Physical Data Channel) and the DPCCH (Dedicated Physical Control Channel), and thus share the shared radio resources, such as power resources, with the WCDMA dedicated channels. The sharing of the radio resources results in inflexibility in radio resource allocation to the HSDPA channels and the WCDMA dedicated channels. Therefore, improvements are needed for radio resource control in a wireless telecommunications system supporting an HSDPA operation. 17 The 893 patent provides a solution to this problem by suspending the HSDPA connection in a plurality of predefined suspension time periods while maintaining the connection in a standby state. The duration of the suspension is defined by a suspension parameter known to the base station and the user equipment before the suspension. 18 The specification states that the invention provides several advantages. In that connection, the specification says: The method, user equipment, base station, network controller and computer program of the invention provide several advantages. In an embodiment of the invention, the flexibility of the radio resource allocation is increased, thus enabling an increase in the number of simultaneous high speed downlink packet access users served by a base station, the reuse of the base station resources, and the allocation of power resources for the WCDMA dedicated channels. 19 Claim 9 of the 893 patent is: An apparatus including user equipment, the apparatus comprising: a communicator configured to communicate data packets received from a base station over a high speed downlink packet access connection including a high speed physical downlink shared channel for data packet transfer and a high speed dedicated physical control channel for uplink signalling; and a connection suspender configured to connect to the communicator, and to suspend the high speed downlink packet access connection in a plurality of predefined suspension time periods while maintaining the high speed downlink packet access connection in a standby state, wherein a duration of the suspension is defined by a suspension parameter known to the base station and the user equipment before the suspension.

The 182 patent 20 The 182 patent relates to a method and apparatus for synchronising two ends of a wireless communication channel during a connection mode change procedure in a telecommunications network, such as a Global System for Mobile Communication (GSM) network. GSM is a standard developed to describe protocols for second generation (2G) digital cellular networks used by mobile phones. 21 The specification of the 182 patent describes a GSM network in which a mobile station, which can be a mobile telephone, is radio-connected to a base station subsystem which, in turn, is connected to a mobile switching centre having an allocated interworking function unit (IWF). The mobile switching centre is connected to a fixed network, such as the Public Switched Telephone Network (PSTN). The IWF is provided for adapting protocol features of the mobile network to protocol features of the fixed network. 22 The specification of the 182 patent specifically identifies the Radio Link Protocol (RLP) as one of the protocols used in mobile telecommunications networks for data transmission. The RLP spans from a mobile station of the GSM network to an IWF located at the nearest mobile switching centre. The mobile station and the IWF communicate by way of the RLP. The RLP link may be initiated by the mobile station or the mobile switching centre. 23 The two ends of a communication channel transmit units of data between each other. The units are called "frames". A frame is made up of a fixed number of binary digits or "bits". In order to account for potential errors in data transmission, a technique known as "channel coding" is used. Channel coding involves adding "redundant bits" to the transmitted information. Different forms of channel coding involve sending frames of different lengths. When there is a change in channel coding, it may be necessary for the length of the frame to change. A change in frame length is an example of a connection mode change procedure. 24 The invention described in the specification of the 182 patent allows a connection mode change procedure, such as a change in frame length, to be performed while the mobile station, at one end of the channel, is operating in a discontinuous transmission mode. 25 The specification of the 182 patent describes an apparatus for achieving synchronisation with communication end points during a connection mode change procedure. The apparatus described corresponds to the IWF. The apparatus includes a transceiver unit for transmitting/receiving speech or data calls to/from the fixed network or the mobile station. It also includes a signal processing unit connected to the transceiver. The processing unit undertakes functions required for adapting data or speech calls of the fixed network to data or speech calls of the mobile network, or vice versa. The processing unit is controlled by a control unit which performs control so as to ensure the required signalling according to the protocols at the input and output side of the apparatus. A REMAP frame detector is provided for detecting the receipt of a REMAP frame from the mobile station. 26 Claim 7 of the 182 patent is: An apparatus for achieving a synchronization with a communication end point during a connection mode change procedure, said apparatus comprising: a) detecting means for detecting a connection mode change request message received from said communication end point; b) communication means for performing a communication with said communication end point; c) control means for setting said communication means into a connection mode change state in response to the detection result of said detection means; d) wherein said communication means is arranged to transmit an acknowledgement message and a numbered frame to said communication end point, in response to said setting by said control means into said connection mode change state, and e) wherein said control means is arranged to control said communication means so as to leave said connection mode change state in response to a receipt of an acknowledgement acknowledging said numbered frame from said communication end point.

Joinder 27 The applicant relies on r 9.02 or, alternatively, r 9.05(1) of the Federal Court Rules 2011 (Cth) (FCR) for the joinder of ZTE Corporation. 28 Rule 9.02 provides: 9.02 Joinder of parties - general An application may be made by 2 or more persons, or against 2 or more persons, if: (a) a separate proceeding could be made by or against each person in which the same question of law or fact might arise for decision; and (b) all rights to relief claimed in the proceeding (whether joint, several or alternative) arise out of the same transaction or event or series of transactions or events. 29 Rule 9.05(1) provides: 9.05 Joinder of parties by Court order (1) A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person: (a) ought to have been joined as a party to the proceeding; or (b) is a person: (i) whose cooperation might be required to enforce a judgment; or (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. 30 In the present case, the applicant relies particularly on (ii) and (iii) above. 31 The respondent originally opposed the applicant's application for joinder of ZTE Corporation on the basis that the application was made in order to obtain discovery from ZTE Corporation and was an abuse of process. This ground of opposition was withdrawn in the course of oral submissions.

Service outside the jurisdiction 32 Relevantly, r 10.43 FCR provides that service of an originating application on a person in a foreign country is effective for the purpose of a proceeding if the Court has given leave under r 10.43(2) before the application is served. Rule 10.43(2) provides that a party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country. Here, service under the Hague Convention is sought. Rule 10.43(3) sets out certain procedural requirements. 33 Importantly, r 10.43(4) provides: For subrule (2), the party must satisfy the Court that: (a) the Court has jurisdiction in the proceeding; and (b) the proceeding is of a kind mentioned in rule 10.42; and (c) the party has a prima facie case for all or any of the relief claimed in the proceeding. Note 1: The law of a foreign country may permit service through the diplomatic channel or service by a private agent - see Division 10.5. Note 2: Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention. Note 3: The Court may give permission under subrule (4) on conditions - see rule 1.33. 34 Rule 10.42 sets out in tabular form the kinds of proceeding for which an originating application may be served on a person in a foreign country. These include a proceeding seeking any relief or remedy under an Act: see item 15 of the table. Proceedings for patent infringement under the Patents Act are of that kind. The table also identifies the following kinds of proceeding, which are also relevant to the present case: a proceeding based on a tort committed in Australia (item 4); a proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring) (item 5); and a proceeding in which the subject matter, to the extent that it concerns the person to be served, is property in Australia (item 21). 35 The only issue between the parties is whether the applicant has satisfied the requirement of r 10.43(4)(c), namely that it has shown that it has a prima facie case for all or any of the relief claimed against ZTE Corporation in the proposed amended originating application. The respondent accepted that if the applicant satisfied the requirement of r 10.43(4)(c), then that would provide a sufficient evidential basis to support ZTE Corporation's joinder. 36 Specifically, the respondent opposed the joinder of ZTE Corporation and the making of orders for service outside Australia on the basis that the applicant had not demonstrated a prima facie case that either the MF821 device takes all the essential features of claim 9 of the 893 patent or that the MSCS takes all the essential features of claim 7 of the 182 patent. The respondent did not bring forward any other ground, or advance any other reason, why those orders should not be made. 37 The respondent also opposed the proposed amendments to the originating application, statement of claim and particulars, but only on the basis that, if ZTE Corporation should not be joined and served outside Australia, it would be pointless to allow the amendments. As I have noted, no separate pleading objections were taken.

Introduction 38 Both parties relied on the following observations by Gordon J in Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [25], which were quoted with approval by Bennett J in Bayer Pharma Aktiengesellschaft v Genentech, Inc. (2012) 98 IPR 424 at [6] and accepted by Jagot J in GE BetzDearborn Canada Company v Memcor Australia Pty Ltd [2013] FCA 78 at [24]: 25 The requirement to demonstrate a prima facie case in this context is not particularly onerous. The question is whether on the material before the Court, inferences were open which, if translated into final findings of fact, would support the relief claimed. A prima facie case exists, provided there is such evidence, even on a hearsay basis, as to sufficient elements of the proceeding leading to any (and not necessarily all) of the relief sought: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at [39], [55], [58] and [97]. (Emphasis in original.) 39 These observations were directed to the requirements of O 8 r 3(2)(c) of the Federal Court Rules, which provided that the Court must be satisfied that the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding. There is no material difference between that requirement and the current requirement expressed in r 10.43(4)(c). 40 In Bell v Steele (2011) 198 FCR 291, when considering r 10.43(4)(c), Collier J at [21] adopted the following observations of the Full Court in Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1,526: … the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see e.g. Merpro Montassa Ltd v Conoco Specialty Products Inc [1991] FCA 70; (1991) 28 FCR 387 at 390. It "should not call for a substantial inquiry": WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376: What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified. 41 In considering whether a prima facie case has been established, it is not the task of the Court to reach a definitive conclusion as to the accuracy of the facts advanced by the parties or to express any preference for competing accounts. The question is whether the evidence supports the facts for which the party seeking leave contends: Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1 at [31].

The evidence 42 The applicant relied on the following affidavit evidence: Christopher John Bird affirmed 13 August 2014; Sarah Louise Matheson sworn 11 August 2014; and Jesse Sol Gleeson affirmed 5 September 2014. 43 Mr Bird is a patent attorney and a partner in Allens Patent & Trade Mark Attorneys. He has practised as a patent attorney for approximately 23 years and has substantial experience in the preparation, prosecution and analysis of patents and patent applications in Australia and internationally. His areas of specialisation include image and audio signal processing, digital telecommunications and electromechanical power switching and control. He leads his firm's group in relation to engineering, electronics and information technology. It is part of his day to day practice to provide formal written infringement opinions. 44 Mr Bird's evidence was directed to expressing an opinion on whether the MF821 device infringes claim 9 of the 893 patent and whether the MSCS infringes claim 7 of the 182 patent. 45 Ms Matheson is a partner in Allens, who are the applicant's solicitors. Her evidence was directed to various aspects of ZTE Corporation's alleged conduct. Her affidavit contained reference to a number of affidavits made on behalf of the respondent, including admissions it had made for the purpose of this proceeding. 46 Mr Gleeson is a solicitor employed by the applicant's solicitors. His evidence was directed to a document entitled "ZTE LTE Terminal Solution", which contains reference to a product identified as the ZTE-MF821D and certain features of that device. 47 The respondent relied on the following affidavit evidence: Philip Edward Hodges affirmed 27 August 2014; and Aaron Leigh James Yates sworn 24 September 2014. 48 Mr Hodges is a mobile telecommunications systems engineer with over 22 years' experience in the telecommunications industry. He provides telecommunications consulting services through a business styled InProSpec, which he founded in 2013. 49 Mr Hodges' evidence was directed to expressing an opinion about whether certain generally-described devices would necessarily take all the features of certain telecommunications standards, which I discuss in greater detail below. The respondent used this evidence to challenge the basis on which Mr Bird expressed his opinions. 50 Mr Yates is a solicitor employed by the respondent's solicitors, Davies Collison Cave Law. His affidavit was directed to an item of promotional material produced on discovery by the respondent, which relates to the MF821 device. The purpose of this evidence was to distinguish between the MF821 device and the device referred to in Mr Gleeson's affidavit.

Telecommunications standards 51 Mr Bird gave evidence that the technical specifications applicable to the wireless telecommunication systems with which the 893 patent and the 182 patent are concerned are to be found in standards that are promulgated by standards-setting bodies such as the European Telecommunications Standards Institute (ETSI). Mr Bird said that manufacturers of mobile stations and infrastructure, such as base stations, must, as a general matter, comply with standards in order for their equipment to connect with, and function correctly within, the relevant wireless telecommunication system. I do not think that these broad propositions are in dispute. Indeed, with respect to the standards I discuss below, Mr Hodges gave the following evidence: Like other telecommunications standards, the primary purpose of the 3GPP Standards is to ensure interoperability between the various components of telecommunications systems and networks (such as user devices or equipment) and infrastructure products (such as mobile base stations) which, in turn, ensures efficient and effective transfer of data and information across those networks or systems. Telecommunications standards (such as the 3GPP Standards) also provide a means by which purchasers of telecommunications products (such as network providers) can readily ensure that such products are compatible with and will work on their existing networks.

The 022 Standard 52 The wireless telecommunications system that followed the GSM system is known as the Universal Mobile Telecommunications System or the 3G system. The standards for the 3G system were promulgated by a body known as the Third-Generation Partnership Project (3GPP), of which ETSI and other standards-setting bodies are members. 53 The 3G system was originally standardised in 2000 by a document entitled Release 99. Release 99 comprises hundreds of individual standards documents. In addition to proposing new standards, Release 99 incorporated those parts of the earlier GSM standards that continued to be used in the 3G system. One of those standards is ETSI technical specification 124 022 (3GPP technical specification 24.022) Version 9.0.0 (the 022 Standard). 54 The 022 Standard provides the technical specifications for the RLP: see [22] above. Section 3 of that standard specifies a method for synchronising between user equipment and the IWF. 55 The respondent has admitted that the MSCS supports Release 99. 56 On the basis that manufacturers of mobile stations and infrastructure must comply with standards in order for their equipment to connect with, and function correctly within, a given wireless telecommunication system, and on the basis that the 022 Standard is part of Release 99 and that the MSCS supports Release 99, the applicant submitted that the Court should infer that the MSCS complies with the 022 Standard. I am satisfied that this inference is reasonably open on the evidence before me.

The 214 Standard 57 The set of standards known as 3GPP Release 5 was published in September 2002. This was the first set of standards for HSDPA. A new release, 3GPP Release 6, was published in 2004. This release contained standards for an enhanced uplink service known as High Speed Uplink Packet Access (HSUPA). Mr Bird gave evidence that HSDPA and HSUPA are often jointly referred to as High-Speed Packet Access (HSPA). 58 A further release, 3GPP Release 7 (Release 7) was published in 2007. Release 7 provided for a further enhanced service known as High Speed Packet Access Evolution (HSPA+). ETSI technical specification 125 214 (3GPP technical specification 25.214) Version 8.2.0 (the 214 Standard) is one of the standards that makes up Release 7. The technical specifications of the physical layer communication procedures for HSPA+ networks are specified in that standard. 59 Release 7 included standards for Continuous Packet Connectivity (CPC), relevantly comprising upstream discontinuous transmission (DTX) and downstream discontinuous reception (DRX). In an uplink channel, the user equipment, such as a mobile phone, is transmitting to a relevant network component in the telecommunications tower. In that mode, discontinuous transmission by the user equipment is upstream DTX and discontinuous reception by the network component is upstream DRX. In a downlink channel, the network component is transmitting to the user equipment. In that mode, discontinuous transmission by the network component is downstream DTX and discontinuous reception by the user equipment is downstream DRX. The expression "discontinuous" in this context means that the transmission or reception is not constant, so that a relevant channel can be turned off or ignored. 60 A still further release, known as 3GPP Release 8, also known as UMTS Release 8 (Release 8), was published in 2008. Release 8 provided for radio access technology known as Long Term Evolution (LTE). Release 8 incorporated the earlier HSPA+ standards that continue to be used in the LTE system. The 214 Standard was republished in Release 8 and is one of the standards that make up that release. 61 There is evidence that 3GPP has agreed that its name and logo can be used by manufacturers and service providers to declare that their products are based on 3GPP's specifications, and that implementers wishing to declare conformity with those specifications can mark their equipment and documentation with the LTE acronym. The MF821 device is promoted by the respondent using the LTE acronym. 62 The respondent has admitted that the MF821 device: provides HSPA+ functionality; and supports Release 8. 63 On the basis that, once again, manufacturers of mobile stations and infrastructure must comply with standards in order for their equipment to connect with, and function within, a given wireless telecommunications system, and on the basis that the MF821 device provides HSPA+ functionality and that the 214 Standard specifies physical layer communication procedures for HSPA+ networks, the applicant submitted that the Court should infer that the MF821 device complies with the 214 Standard. The inference is supported by the fact that the MF821 device is promoted using the LTE acronym. I am satisfied that this inference is reasonably open on the evidence before me.

The MF821 device and claim 9 of the 893 patent 64 As I have noted, the 893 patent relates to the control of resources (e.g. power, frequency, channel codes) in a wireless telecommunications system involving HSDPA. 65 The applicant contended that it has a prima facie case of infringement of claim 9 of the 893 patent based on the exploitation of the MF821 device in Australia. I have already set out claim 9 in these reasons: see [19] above. 66 There seems to be no dispute, at least for present purposes, that the MF821 device is "user equipment" as understood by claim 9. 67 The respondent has admitted that the MF821 device comprises a communicator configured to communicate data packets received from a base station over a HSDPA connection including a high speed physical downlink shared channel for data packet transfer and a high speed dedicated physical control channel for uplink signalling (Feature 1). A communicator, so configured, possesses one of the major features of the apparatus claimed in claim 9. 68 The respondent has made clear that ZTE Corporation provides it with the technical information it requires for the products its supplies in Australia. In an affidavit affirmed on 7 May 2014, the respondent's managing director, Xiaoke Zhang, deposed that the respondent's only business is to market and sell various telecommunications products in Australia which are manufactured and supplied by ZTE Corporation. He said that the respondent does not conduct any research and development in relation to products or develop new products. 69 Mr Zhang said: ZTE Australia only has access to information about the Products that is set out in product brochures and manuals for those Products prepared and provided to ZTE Australia by ZTE Corporation for distribution to potential and actual customers of ZTE Australia … As a sales and marketing company, ZTE Australia has no need to access documents containing this Technical and Functional Information. 70 Mr Zhang also said: From my experience in my role as Managing Director with ZTE Australia and my knowledge of ZTE Australia's operations, if a potential or existing customer of ZTE Australia were to have a technical enquiry concerning the function or design of a Product or which otherwise relates to Technical and Function or Information (that is not addressed in the Marketing and Product Materials), ZTE Australia would refer that enquiry to ZTE Corporation (as the supplier of the Product) if that enquiry could not be answered by ZTE Australia's sales staff based on their own knowledge and understanding of the Products or information derived from the Marketing and Product Materials. 71 In another affidavit, affirmed on 1 July 2014, Mr Zhang said: As a result of initial telephone discussions I have previously had with ZTE Corporation's internal legal team, I am aware that, in light of the numerous proceedings ZTE Corporation (and its related companies) are involved in with the Respondent (and its related companies) around the world, all internal communications related to proceedings against the Respondent (including requests for documents) must only be sent in writing to ZTE Corporation's internal legal department. 72 Based on these statements, an inference is available that the respondent could not have, and would not have, made the admission to which I have referred in [67] unless ZTE Corporation provided the information to enable it to do so. The further inference is available that the respondent's admission comprises technical facts that are accepted by ZTE Corporation as being correct. I reach the same conclusions in relation to the respondent's admissions referred to in [62] above. 73 I am satisfied, therefore, that the applicant has established a prima facie case that the MF821 device possesses Feature 1. 74 I turn to consider the remaining features of the apparatus claimed in claim 9, namely: a connection suspender configured to connect to the communicator, and to suspend the high speed downlink packet access connection in a plurality of predefined suspension time periods while maintaining the high speed downlink packet access connection in a standby state (Feature 2); wherein a duration of the suspension is defined by a suspension parameter known to the base station and the user equipment before the suspension (Feature 3). 75 This part of the applicant's case relies on the contention that the MF821 device complies with the 214 Standard. 76 With respect to Feature 2, the specification of the 893 patent makes clear that a HSDPA connection comprises a number of constituent channels. These channels include the High Speed Physical Downlink Shared Channel (the HS-PDSCH) and the High Speed Dedicated Physical Control Channel (the HS-DPCCH). The HS-PDSCH provides a transport mechanism for HSDPA logical channels, such as the High Speed Downlink Shared Channel (the HS-DSCH). The specification also makes clear that the connection typically includes a High Speed Physical Downlink Shared Control Channel (the HS-SCCH) which serves as a downlink signalling channel parallel to the HS-PDSCH. The HS-SCCH carries downlink information that allows the user equipment to listen to the HS-DSCH at the correct time and to use the correct codes to allow successful decoding of a received packet. It is at least arguable that a HSDPA connection will be suspended when one or more of the connection's constituent channels are not used. Further, it is reasonable to conclude, for present purposes, that the software modules that perform this suspending function constitute a "connection suspender". 77 Section 6C of the 214 Standard specifies procedures for DTX and DRX, namely discontinuous uplink DPCCH transmission and discontinuous downlink reception, involving user equipment. The functionality described makes sufficiently clear, at least for present purposes, that the user equipment has a chipset and operating software to enable it to communicate with base stations. 78 Mr Bird gave the following evidence in relation to Section 6C.3: Section 6C.3 describes discontinuous downlink reception as involving the user equipment only receiving certain HSDPA channels (including the HS-PDSCH and HS-SCCH channels) during selected time periods and not receiving these channels at other times. The time periods during which the user equipment receives these HSDPA channels are defined by a set of 'reception subframes' that verify a particular equation set out in Section 6C.3. … The reception patterns depicted in Figures 2C and 2D are two examples of the suspension of the HS-SCCH and HS-PDSCH channels in which a variable in the equation noted above respectively assumes two different values. 79 It is arguable that, as the HS-PDSCH and HS-SCCH channels are not received during time periods apart from those defined by the equation set out in Section 6C.3, the HSDPA connection is suspended during these periods. Further, as the time periods are defined by a governing equation, it is arguable that they are "predefined". It is also arguable that when the HSDPA connection is suspended, and does not consume resources such as power and the bandwidth of the radio link between the user equipment and base station, it is in a "standby state". As Section 6C.3 refers to only the discontinuous reception of HSDPA channels, it would seem that other channels continue to operate in the normal way. 80 For these reasons, I am satisfied that the applicant has established a prima facie case that Feature 2 is described in the 214 Standard. 81 With respect to Feature 3, Mr Bird gave the following evidence in relation to Section 6C.3: The numbers of the reception subframes included in the reception pattern specified in Section 6C.3 define the time periods during which the HS-PDSCH and HS-SCCH channels are received. Consequently, the numbers of the remaining subframes define the time periods during which the HS-PDSCH and HS-SCCH are not received. A 'parameter' is something that defines a particular system. As the remaining subframe numbers define time periods when the HS-PDSCH and HS-SCCH are not received, they constitute a suspension parameter that defines the duration of the suspension. In order to ensure that the base station does not transmit data on the HSDPA connection while it is suspended, the particular subframe numbers must be known to the base station prior to the transmission. Moreover, for the user equipment to suspend the HSDPA connection during this period, prior knowledge of the correct subframe number is required. 82 Based on this evidence, I am satisfied that the applicant has established a prima facie case that Feature 3 is described in the 214 Standard.

The MSCS and claim 7 of the 182 patent 83 As I have noted, the 182 patent relates to a method and apparatus for synchronising two ends of a wireless communication channel during a connection mode change procedure in a telecommunications network. 84 The applicant contended that it has a prima facie case of infringement of claim 7 of the 182 patent based on the exploitation of the MSCS in Australia. I have already set out claim 7 in these reasons: see [26] above. 85 The applicant's case is based on the contention that the MSCS complies with the 022 Standard. As I have noted ([55] above), the respondent has admitted that the MSCS supports Release 99, which includes the 022 Standard. Based on the evidence I have summarised at [68]-[71] above, inferences are available that the respondent would not have made that admission unless ZTE Corporation provided the information to enable it to do so and that the admission comprises technical facts that are accepted by ZTE Corporation as being correct. 86 Section 5.4 of the 022 Standard is concerned with transitions between 240 bit and 576 bit frame lengths. It refers to the fact that the RLP has to change the supported frame length due to transitions between different channel codings and that RLP entities have to be re-synchronised after a change of channel coding. It further refers to the entities as being at either the "mobile-end" or the "network-end". Section 5.2.2.9 of the 022 Standard, which deals with remapping, indicates that the mobile-end entity is user equipment and that the network-end entity is an IWF. 87 Section 5.4 says, in part: Any change of the channel coding is indicated to the RLP-entity by an external event. The RLP-entity at the mobile-end enters the synchronisation state when it receives a relevant Radio Resource Management message, and it starts sending the REMAP-messages at the earliest possible time. The RLP-entity at the network-end enters the synchronisation state when the network-end detects Layer 1 synchronisation after a change of channel coding. The change of channel coding is eventually confirmed by an outband signalling message. 88 With respect to the feature described in paragraph (a) of claim 7, Mr Bird gave evidence that the REMAP-messages sent by the RLP-entity at the mobile-end (i.e. the user equipment) to the RLP-entity at the network-end (i.e. the IWF), where the message is received (i.e. detected), constitutes a connection mode change request message as claimed. I would add that this part of Section 5.4 describes the IWF communicating with the user equipment, and thus possessing communication means for that purpose: paragraph (b) of claim 7. 89 Further in that regard, Section 5.2.2.9 describes a REMAP-exchange between the user equipment and the IWF in the following terms: The exchange is started by the mobile-end which sends a REMAP command U-frame in the information field of which the RLP-entity indicates the N(R) of the frame - according to the 'old' frame format - from which the network-end should resend the information mapped into a frame format corresponding to the new channel coding. The mobile-end sends a REMAP-frame on every sending opportunity until a responding REMAP-frame is received from the network-end. The network-end answers by sending a REMAP U-frame with the C/R-bit set to 'Response'. In the information-field the network-end indicates the N(R)-number of the frame from which the mobile-end should remap the information into the new frame format. The network-end responds to all REMAP-commands it receives as long as it is in the REMAP synchronisation state. The network sends a numbered S frame with poll bit P=1 or an I+S frame after the first REMAP frame to the user equipment to compel it to acknowledge the end of the REMAP condition. This frame is guarded by T1. Upon reception of an I+S frame or an S frame with the final bit F=1 from the UE, the IWF exists the REMAP synchronisation state. 90 With respect to the feature described in paragraph (c) of claim 7, Mr Bird gave evidence that the description of the IWF responding to REMAP messages sent by the user equipment, as long as the IWF is in the synchronisation state, discloses the presence of a signal processing unit that performs the function of entering the IWF into a synchronisation state in response to the detection result of the detection means, as claimed. 91 Mr Bird said that the REMAP-exchanges described in Section 5.2.2.9 are performed in order to transition between different frame formats and that the synchronisation state described is a connection mode change state. On the evidence before me, I am prepared to proceed on the basis that this part of Section 5.2.2.9 implicitly discloses the existence of control means for carrying out that function. 92 With respect to the feature described in paragraph (d) of claim 7, Mr Bird gave evidence that the described response of the IWF to the REMAP command U-frame transmission by the user equipment is an acknowledgement response and that either or both of the numbered S frame or I+S frame sent by the IWF are numbered frames. Mr Bird also gave evidence that the above passages in Sections 5.2.2.9 and 5.4 describe the acknowledgement message and the numbered frames sent by the IWF when it is in the synchronisation (connection mode change) state. 93 Finally, Mr Bird gave evidence that the feature described in paragraph (e) of claim 7 is described by that part of Section 5.2.2.9 which refers to the IWF exiting the REMAP synchronisation state on receipt of an I+S frame or an S frame with the final bit F=1 from the user equipment. Mr Bird said that this frame is an "acknowledgement acknowledging said numbered frame from said communication end point". 94 Mr Bird's evidence was, therefore, that the features of claim 7 are described in and are part of the 022 Standard. 95 Based on Mr Bird's evidence, I am satisfied that the applicant has established a prima facie case that the features of claim 7 are described in the 022 Standard.

Mr Bird's conclusions 96 Mr Bird concluded that the MF821 device infringes claim 9 of the 893 patent, based on the following reasoning. As all the features of claim 9 are specified in the 214 Standard, the claim is necessarily infringed by user equipment that is compliant with the 214 Standard. The MF821 device is an item of user equipment that is compliant with the 214 Standard. Consequently, the MF821 device infringes claim 9. 97 Mr Bird concluded that the MSCS infringes claim 7 of the 182 patent, based on similar reasoning. He said that, as all the features of claim 7 are specified in the 022 Standard, the claim is necessarily infringed by apparatuses that are compliant with the 022 Standard. The MSCS is an apparatus that is compliant with the 022 Standard. Consequently, the MSCS infringes claim 7. 98 The respondent contended that Mr Bird's affidavit should not be admitted into evidence or given any weight. First, the respondent submitted that Mr Bird's evidence is not relevant because it compares the impugned products with, relevantly, either the 214 Standard or the 022 Standard. The respondent submitted that "[t]here is no substitute for a direct comparison of the impugned products with the asserted claims …" 99 Secondly, the respondent submitted that the evidence does not establish that Mr Bird has "specialised knowledge … in the field of telecommunications standards interpretation, or the extent to which manufactures of telecommunications devices incorporate part or all of such standards in their devices." 100 Thirdly, the respondent submitted that there is no suggestion that Mr Bird was a person skilled in the relevant art at the priority dates of the patents. 101 In my view, Mr Bird's evidence is admissible. If, as I accept, an inference is reasonably open that the MF821 device complies with the 214 Standard, and that an inference is reasonably open that the MSCS complies with the 022 Standard, then the content of Mr Bird's evidence is plainly relevant. 102 Further, I am satisfied that Mr Bird is qualified to give this evidence in his affidavit. The respondent accepted that Mr Bird has expertise in patent law. I take this acceptance to include, as it obviously must, acceptance that, by reason of his training, study and experience as a patent attorney, Mr Bird has experience in the reading and analysis of patent documents, which would equip him with expertise in analysing patent claims. Mr Bird has also given unchallenged evidence that his areas of specialisation, as a patent attorney, include digital telecommunications, image and audio signal processing, and electromechanical power switching and control. In my view, this qualifies Mr Bird as a witness who is able to read and understand industry standards applicable to those fields, certainly to a level that is sufficient to comprehend whether such standards specify the features of claim 9 of the 893 patent and claim 7 of the 182 patent. I can proceed confidently on the basis that it is well within the expertise of a competent patent attorney to read technical documents that pertain to the fields of activity in which the attorney practises. Mr Bird's competence as a patent attorney practising in the field of digital telecommunications, image and audio signal processing, and electromechanical power switching and control is not in dispute. 103 Further, the respondent's submission that it has not been established that Mr Bird was a person skilled in the art at the priority dates of the relevant claims, is somewhat misdirected. For the purposes of the Patents Act, the person skilled in the art is a hypothetical construct possessing certain attributed characteristics and knowledge. The nature of those characteristics and the extent of that knowledge depends on the invention that is claimed and the field of activity in which the invention is practised. I do not understand it to be contested that the person skilled in the art would be able to read and understand the 214 Standard and the 022 Standard, being standards relevant to telecommunications systems. Once it is accepted that Mr Bird is qualified to read and understand each standard to the level required to understand whether the features of claim 9 of the 893 patent, and the features of claim 7 of the 182 patent, are described, it does not matter (if it be the case) that Mr Bird does not personally possess other knowledge that might be attributed to the hypothetical person. 104 In GE BetzDearborn (at [38]), Jagot J was prepared to accept, for the purposes of an application to serve process outside Australia, the evidence of a patent attorney concerning whether a particular device incorporated the features of a claim in suit. The present respondent sought to distinguish that case on the basis that here, unlike the case before Jagot J, the respondent has placed evidence before the Court on the question of infringement, namely Mr Hodges' evidence. 105 I do not think that GE BetzDearborn is distinguishable from the present case on that basis. Nevertheless, the respondent is correct to point out that, in GE BetzDearborn, Jagot J did comment on the fact that "there is no evidence whatsoever from the respondents suggesting in any way that there is a dispute …": see at [22]. That fact was, no doubt, a circumstance which her Honour took into account when considering what, if any, reliance should be placed on the patent attorney's evidence before her. 106 Here, the respondent did not challenge Mr Bird's analysis of the features of claim 9 of the 893 patent read against the 214 Standard or the features of claim 7 of the 182 patent read against the 022 Standard. To that extent, the state of the evidence in the present case is similar to the state of the evidence in GE BetzDearborn. What the respondent did challenge is the relevance of Mr Bird's evidence, based as it is on the 214 Standard and the 022 Standard. I have rejected that ground of objection. 107 In my view, the following observations by Jagot J in GE BetzDearborn (at [12]) are apposite: 12 This is an interlocutory proceeding seeking orders for joinder and service outside the jurisdiction. While the significance of joinder and service outside the jurisdiction should not be underestimated it is not an application which seeks any form of determination, even on an interlocutory basis, of substantive rights or interests of any party. Taking into account that fact I can see no reason not to accept Mr Davis's evidence at face value at least for the purposes of this application. 108 The following observations by Beaumont J in WSGAL Pty Limited v Trade Practices Commission (1992) 39 FCR 472 at 476 are also apposite: [O]ne of the matters an applicant seeking leave to serve outside the jurisdiction has to establish is that is has a prima facie case. Such a preliminary question should not call for a substantial inquiry. The kind of evidence adduced on a preliminary inquiry of this kind should be in proportion to the nature of such an interlocutory issue. 109 In my view, it was proportionate and appropriate for the applicant to rely on Mr Bird's evidence in the circumstances of this case. 110 I now turn to consider Mr Hodge's evidence in more detail.

Mr Hodges' evidence 111 Mr Hodges provided an affidavit in which he gave an overview of how 3GPP Standards are developed. He discussed the drafting practices and policies employed. He explained that various conventions of language are adopted to distinguish between requirements that must be followed, requirements that should be followed as a matter of preference (but not as a matter of exclusion), and practices that may be followed in the sense of being permitted. He said that some features referred to in 3GPP specifications may be optional but that, if adopted, may need to conform to certain requirements. 112 Mr Hodges said that, while the drafting rules prescribe certain requirements that are designed to assist users to identify and distinguish between mandatory, recommended and optional aspects of a standard, they are nevertheless "merely guidelines". He said that "one cannot determine conclusively whether a device implements a specific section of a Standard by reference only to the language of the Standard." 113 In this connection, Mr Hodges explained that, in order to determine whether a feature or process in a standard is "mandatory", it is necessary to consider not only the language employed in the standard, but also "the standards framework as a whole". He said that a statement in one standard or a related technical report may suggest or indicate that a feature or process described in another standard is optional. 114 Mr Hodges was asked by the respondent's solicitors to provide an opinion on whether a USB 4G device that is advertised as supporting dual-band LTE and which is said to "support UMTS Release 8" and "provide HSPA+ functionality" necessarily takes each of the features of the 214 Standard, in circumstances where it is not admitted: that the device supports DTX; or that the device complies with Section 6A.1 or Section 6C of the 214 Standard. 115 I have referred to the fact that Section 6C of the 214 Standard specifies procedures for DTX and DRX: see [77]. This relates to the CPC functions I have described at [59] above. 116 Mr Hodges argued that CPC, which allows the radio transmitters in user equipment to be switched off during DTX and DRX, in HSPA+, is "purely optional". He said it was "entirely possible" for user equipment to leave all its communications channels on and open continuously, even when the equipment has no data to send. 117 Mr Hodges supported this argument by pointing out that a USB modem generally does not have a battery; its power is drawn from a computer over the USB bus. He also pointed to some language in Section 6A.1 of the 214 Standard and to various passages from related standards which, he said, supported the view that CPC is optional. 118 Mr Hodges then argued that user equipment might support Release 8 and provide HSPA+ functionality, but not support or implement any form of DTX or DRX. He said that a device that does not support "optional" DTX or DRX features need not comply with Section 6C of the 214 Standard. Even if the device does support downlink DRX, Mr Hodges said it need not implement it in the way exemplified by Figures 2C and 2D in Section 6C. 119 Further, Mr Hodges said that even if the device implements DTX, it may simply implement uplink DTX and not downlink DRX. In other words, the device might discontinuously transmit but continuously receive. 120 Mr Hodges also argued that a device that supports uplink DTX but not downlink DRX, or does not support CPC at all, need not implement Section 6C.3 of the 214 Standard. 121 Thus, Mr Hodges argued, a statement that a USB device provides HSPA+ functionality and supports Release 8, "provides no information" as to whether the device: implements CPC; implements downlink DRX; complies with the 214 Standard; or complies with Section 6A.1 and Section 6C of the 214 Standard. 122 Mr Hodges was also asked by the respondent's solicitors to provide an opinion on whether a mobile switching centre that is said to "support 3GPP Release 99" necessarily takes each of the features of the 022 Standard, in circumstances where it is not admitted that the device complies with Sections 3, 4.1, 5.2.2.9 or 5.4 of the 022 Standard. 123 Mr Hodges gave evidence that the 022 Standard is concerned with circuit switched bearer services and teleservices (e.g. a facsimile service). These services utilise circuit switched data transmission (CSDT). He said that this is an older form of transferring data - the newer form being packet switched data transmission. CSDT relies on the establishment of dedicated communications links between two end systems on a network, which are maintained for the duration of a communication between the two systems and are only released when the communication terminates. 124 Mr Hodges expressed the view that, at the present time, CSDT usage is "extremely low". This is because packet switched data transmission has advantages over CSDT and that, since about 2002, handsets and mobile devices favour the General Packet Radio Service (GPRS), a packet-based protocol. 125 Mr Hodges said that, in modern networks, which are primarily packet-based, it is not essential to provide circuit switched bearer services and teleservices. By reference to a standard which is a further release of the 3GPP Standard, Release 9, Mr Hodges argued that the 022 Standard is "a wholly optional 3GPP Standard" and that it is "entirely possible" to communicate between user equipment and a mobile telecommunications network without using the RLP. 126 Further, Mr Hodges argued that, even assuming that a mobile switching centre supported circuit switched bearer services and teleservices, this did not necessarily mean that the mobile switching centre complies with or implements each of the features and processes described in the 022 Standard. 127 Mr Hodges also gave evidence that remapping, which is part of the process of changing the frame size used in the middle of a communication, is a rare circumstance and thus one of the reasons why he would consider the implementation of REMAP-exchanges to be "technically optional". 128 Mr Hodges' opinion was that a statement that a mobile switching centre supports Release 99, "provides no information" as to whether it: supports circuit switched bearer services and teleservices or CSDT; complies with the 022 Standard; supports REMAP-exchanges; or supports REMAP-exchanges in the way described in Section 5.2.2.9 of the 022 Standard.

Conclusion 129 Mr Bird analysed the features of the MF821 device with the features of the apparatus claimed in claim 9 of the 893 patent, based on the assumption that the MF821 device complies with the 214 Standard. Mr Bird reasoned that, if all the features of claim 9 are specified in the 214 Standard, then an apparatus such as the MF821 device, which complies with the standard, must necessarily take all the features of the claim. 130 I have accepted that an inference is reasonably open that the MF821 device does comply with the 214 Standard. However, contrary to Mr Bird's reasoning, I do not think that simply because that inference is available it follows, necessarily, that the MF821 device has all the features of that standard and, in particular, Feature 2 and Feature 3 to which I have referred at [74] above. 131 However, I am not deciding the question of infringement of claim 9 of the 893 patent on a final basis. The present inquiry is directed to whether a prima facie case of infringement has been established. As the authorities make clear, if inferences are available on the material before the Court which, if translated into final findings of fact, would support the relief claimed, then that is sufficient to establish the requirement of r 10.43(4)(c) FCR. 132 An inference is reasonably open that the MF821 device complies with the 214 Standard because of the admissions that the device provides HSPA+ functionality and supports Release 8. Now is not the time to determine the extent of those admissions. Nevertheless, if, which is not presently disputed, the device provides HSPA+ functionality, I think an inference is reasonably open that that functionality is the one provided for in the prevailing standard, namely the 214 Standard which is part of Release 8, as opposed to some partial or otherwise more limited functionality in that regard. Thus, an inference is reasonably open that the MF821 device has the DTX and DRX functionality described in Section 6C of the 241 Standard and, in particular, Section 6C.3 thereof. By so concluding, I am not denying that competing inferences are available on the evidence. Whether, at a final hearing, one would be justified in make a finding of infringement, on the balance of probabilities, based on the inference I have identified (see, for example, Holloway v McFeeters (1956) 94 CLR 470 at 480-481), is not a question I need decide for the purposes of this application. 133 In coming to this conclusion, I have taken into account the various matters advanced in Mr Hodges' evidence. However, I repeat, I am not deciding the question of infringement on a final basis. I make the following observations in relation to Mr Hodge's evidence. 134 First, much of Mr Hodges' evidence was based on his views about the language employed in the 214 Standard and other related standards. However, his own evidence was that one cannot determine conclusively whether a device implements a specific section of a standard only by reference to the language used. That evidence cuts both ways. The present application is not the time to come to a final view about what features are mandatory and what features are optional in the 214 Standard. My impression is that views might reasonably differ on that question and I do not propose to resolve any such debate on an application for interlocutory relief. Still less do I propose to analyse and determine the effect of other statements in related standards as they pertain to the 214 Standard. The fact that there might be competing views on the construction of the 214 Standard does not gainsay the fact that it is reasonably open to infer that the MF821 device has the functionality described in Section 6C of that standard. 135 Secondly, Mr Hodges was not asked to give evidence about the MF821 device itself. Indeed, beyond the item of promotional material annexed to Mr Yates' affidavit (which is uninformative so far as the presence or absence of Feature 2 and Feature 3 is concerned), the respondent did not adduce any evidence about the specific features of the device when it must have been well-capable of doing so. I acknowledge immediately that the respondent bears no onus on this application. Nevertheless, it chose to resist the applicant's application in a particular way. Specific evidence of the features of the MF821 device could have been put through Mr Hodges or through an officer of the respondent or one of its related companies, or through some other person having knowledge of those facts. The fact that the respondent did not do so leaves me less inclined to draw inferences favourable to its case and more inclined to draw inferences favourable to the applicant's case, based on the evidence that was given: Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361 at [63]; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419; Jones v Multiple Sclerosis Society of Victoria Ltd [1996] 1 VR 499 at 506. I do not think that it is an answer for the respondent to say that it was required to do no more than challenge the reasoning on which the applicant's application is based, when it was within its power to provide direct evidence of the features possessed (and, importantly, not possessed) by the MF821 device. 136 In Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1, Merkel J (at [128]) accepted that the principle in Jones v Dunkel (1959) 101 CLR 298 at 308 can apply in an interlocutory hearing, such as the present. In that case, foreign respondents sought to set aside service of originating process which had been served on them pursuant to the prior leave of the Court. The pleaded allegations concerned an international price fixing and market sharing arrangement in respect of vitamin products manufactured and sold by the respondents or their subsidiaries. His Honour said (at [131]): 131 In the circumstances Jones v Dunkel can be applied to the inferences that are reasonably open on the evidence as to the implementation in Australia of the cartel arrangement by the foreign respondents. An analogous approach, which is helpful in the present context, is that expressed by Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at 227: " … it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it." 137 As I have noted, Mr Hodges' evidence was not directed to challenging Mr Bird's evidence that the 214 Standard describes the features of claim 9 of the 893 patent. Indeed, the respondent's solicitors only provided Mr Hodges with limited extracts from Mr Bird's affidavit. These passages did not deal with Mr Bird's analysis of the disclosures of the 214 Standard in relation to the features of claim 9 of the 893 patent. 138 Thirdly, I do not think that the fact that the MF821 device might draw its power from a computer, rather than from its own battery source, stands persuasively against the MF821 device having DTX and DRX functionality. After all, the computer itself may well be operating on battery power. Moreover, the allocation of power resources is only one of several advantages said to be provided by the invention: see [18] above. 139 I am satisfied, for the purposes of r 10.43(4)(c) FCR, that the applicant has established a prima facie case that the MF821 device has the features of claim 9 of the 893 patent. I am satisfied that the applicant's case is more than mere suspicion or conjecture in that regard. 140 Similarly, Mr Bird analysed the features of the MSCS with the features of the apparatus claimed in claim 7 of the 182 patent, based on the assumption that the MSCS complies with the 022 Standard. Mr Bird reasoned that, if all the features of claim 7 are specified in the 022 Standard, then the MSCS, which complies with the standard, must necessarily take all the features of the claim. 141 I have accepted that an inference is reasonably open that the MSCS does comply with the 022 Standard. However, once again, contrary to Mr Bird's reasoning, I do not think that simply because that inference is available it follows, necessarily, that the MSCS has all the features of that standard and, in particular, the features of claim 7. 142 Nevertheless, the respondent has admitted that the MSCS supports Release 99, which includes the 022 Standard. As with the other admissions made by the respondent, an inference is available that the respondent could not have, and would not have, made that admission unless ZTE Corporation provided the information to enable it to do so. The further inference is available that the respondent's admission comprises technical facts that are accepted by ZTE Corporation as being correct. 143 If, as seems to be the case, the MSCS supports Release 99, which includes the 022 Standard, then, in my view, an inference is reasonably open that the MSCS supports Release 99 without qualification and, hence, provides for the REMAP-exchanges described in Section 5.2.2.9 and Section 5.4 of the 022 Standard. 144 Once again, there may be competing inferences, but I do not have to decide, for the purposes of the present application, which inference should be preferred; still less am I required to decide whether any particular inference would, of itself, justify a finding of infringement on the balance of probabilities. 145 Mr Hodges' evidence on this aspect of the application focused on interpreting standards with a view to expressing an opinion on whether certain features of the 022 Standard were mandatory or optional. Once again, it seems to me that views might reasonably differ on that question. 146 Further, Mr Hodges was not asked to give evidence about the MSCS itself, nor did the respondent itself adduce evidence about the specific features of the MSCS. For the reasons given above with respect to the MF821 device, the respondent's failure to adduce evidence concerning the specific features of the MSCS leaves me less inclined to draw inferences favourable to its case and more inclined to draw inferences favourable to the applicant's case, based on the evidence that was given. I have no doubt that the respondent could have adduced evidence on that matter. For its own reasons, it elected not to do so. 147 Further, notwithstanding that newer technology is available (in the form of packet switched data transmission) and notwithstanding that REMAP-exchanges might be rare (if that be the case), I am not persuaded that I should conclude that no inference is available that the MSCS has the features described in Section 5.2.2.9 and Section 5.4 of the 022 Standard. 148 Once again, Mr Hodges' evidence was not directed to challenging Mr Bird's evidence that the 022 Standard describes the features of claim 7 of the 182 patent. 149 In all the circumstances, I am satisfied that, for the purposes of r 10.43(4)(c) FCR, the applicant has established a prima facie case that the MSCS has the features of claim 7 of the 182 patent. Once again, I am satisfied, in all the circumstances, that the applicant's case, in that regard, is more than mere suspicion or conjecture.

Other aspects of prima facie case 150 At [36] above, I noted that the respondent opposed the joinder of ZTE Corporation and the making of orders for service outside Australia on the basis that the applicant had not demonstrated a prima facie case that either the MF821 device takes all the essential features of claim 9 of the 893 patent or that the MSCS takes all the essential features of claim 7 of the 182 patent. For the reasons given above, that opposition fails. 151 Elsewhere in its submissions, the respondent submitted that the applicant is required to establish a prima facie case on those matters and that ZTE Corporation has committed one of the relevant acts of exploitation in respect of the MF821 device or the MSCS, or that ZTE Corporation has authorised the respondent to do one of those acts, or that ZTE Corporation has participated with the respondent in a common design to do one of those acts. 152 The latter submission is undoubtedly correct, although the respondent has directed no submissions to the particular conduct of ZTE Corporation in answer to the applicant's case. Its opposition really proceeded on the basis outlined in [36] and [150] above. For this reason, I will simply note in summary form the applicant's case directed to ZTE Corporation's conduct. 153 First, the applicant submitted that there is a prima facie case that ZTE Corporation is a primary infringer by exploiting the MF821 device and the MSCS in Australia. The applicant pointed to evidence that the MF821 device and the MSCS are promoted for sale and supply in Australia and elsewhere via a website styled "ZTE Corporation". The respondent has admitted that ZTE Corporation is the publisher of the content of the website. There is evidence that customers seeking products in Australia are directed from this website to a website relating to the respondent. On the other hand, inquiries about ZTE Networks on the respondent's website are directed to the homepage of ZTE Corporation's website. Until relatively recently, the respondent's address recorded on its website was the registered office address and principal place of business of ZTE Corporation's Global Sales Office for Asia Pacific. Further, there is no dispute that the products supplied or offered to be supplied in Australia (including the MF821 device and the MSCS) are manufactured by ZTE Corporation. The respondent's business is to market and sell those products. The respondent says that ZTE Corporation is responsible for technical inquiries in relation to the products supplied or offered to be supplied in Australia and that ZTE Corporation prepares and provides product manuals and brochures in relation to those products. 154 Secondly, the applicant submitted that there is a prima facie case that ZTE Corporation has authorised the respondent's promotion, sale and supply of products in Australia. In this connection, the word "authorise" as used in s 13 of the Patents Act has been given a meaning that equates with "authorise" in the Copyright Act 1968 (Cth). Thus, "authorise" bears the meaning conveyed by the collocation "sanction, approve, countenance": University of New South Wales v Moorhouse (1975) 133 CLR 1. 155 The applicant submitted that the facts supporting its case on primary infringement strongly support its case on infringement by authorisation. The applicant submitted that the respondent can only market and sell products in Australia with the facilitation and ongoing support of ZTE Corporation. ZTE Corporation provides the respondent with its products and provides the ongoing technical support to Australian customers. Further, ZTE Corporation indirectly owns all the respondent's issued capital. 156 In this connection, the applicant also submitted that the respondent simply acts as ZTE Corporation's Australian sales office. The gravamen of the applicant's case, in that regard, is that the relationship between the respondent and ZTE Corporation is not simply one between commercial entities in the chain of supply, with the respondent engaged independently in its own business. 157 When dealing with an earlier application in this proceeding for a Sabre order (Vringo Infrastructure, Inc. v ZTE (Australia) Pty Ltd (No 2) [2014] FCA 525), I concluded (at [24]): 24 The evidence establishes plainly that the respondent is the Australian sales arm of ZTE Corporation. Indeed, in oral submissions, counsel for the respondent properly described it as such. Although it would seem that the respondent's activities are limited to the marketing and sale of such products, it can be seen that those activities are carried on for ZTE Corporation's benefit, with ZTE Corporation, by virtue of its shareholding, having the entire economic interest in those activities. As an "arm", the respondent is part of ZTE Corporation's "body". It is in precisely such circumstances that it is appropriate to make an order in the nature of a Sabre order. The purposes intended to be served by orders for discovery ought not be frustrated because relevant documents are, or may be, held by a member of a group of companies other than the member who is a litigant … 158 The evidence adduced by the applicant in this application, which is not disputed by the respondent, reinforces that conclusion. 159 Further, the applicant has pointed to evidence of ZTE Corporation's support of the respondent's defence in this proceeding. The applicant submitted that this strongly supports an inference that ZTE Corporation sanctions and countenances the respondent's exploitation of products in Australia and closely collaborates with the respondent in that regard. 160 Thirdly, the applicant submitted that there is a prima facie case that ZTE Corporation has induced or procured, or joined in a common design with, the respondent to promote, sell and supply products in Australia. 161 In this connection, the applicant submitted that the facts supporting its case on authorisation equally support its case that ZTE Corporation was and is acting as a joint tortfeasor. The relevant principles of joint tortfeasance are discussed sufficiently for present purposes in Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1 at [21]-[25]. Given the focus of the respondent's opposition on the question of the existence of a prima facie case, I do not need to repeat that summary in these reasons. Nevertheless, I have had regard to those principles. 162 The evidence before me shows that there is a very close relationship between ZTE Corporation and the respondent. This relationship has the appearance of being one that is significantly more than merely a corporate one. I accept that, on the evidence before me, the respondent is ZTE Corporation's Australian sales arm. Inferences are reasonably open that the respondent carries on a business that could be described aptly as ZTE Corporation's Australian business and that ZTE Corporation thereby authorises and has authorised the respondent's acts which are alleged to be exploitations of the inventions claimed in the 893 patent and the 182 patent. An inference is also reasonably open that ZTE Corporation has either procured those acts or acted in a common design with the respondent to carry them out. 163 Therefore, taking into account the conclusions I have reached in [139] and [149] above, I am satisfied that the applicant has established a prima facie case of infringement against ZTE Corporation based on authorisation and joint tortfeasance. It is not necessary for me to form a conclusion on whether the applicant has also established a prima facie case of primary infringement by ZTE Corporation.

Overall conclusion 164 I am satisfied that it is appropriate to join ZTE Corporation as a respondent to the proceeding. I am satisfied that a separate proceeding could be made against ZTE Corporation in relation to the alleged infringements of the 893 patent and the 182 patent, and that all rights to relief claimed in the proceeding arise out of the same series of transactions or events. The requirements of r 9.02 FCR are, therefore, satisfied. 165 Similarly, I am satisfied that ZTE Corporation is a person who should be joined as a party in order to enable the determination of a related dispute and, as a result, avoid a multiplicity of proceedings. The requirement of r 9.05(1)(b)(iii) is satisfied. It is not necessary for me to consider the other bases for joinder under r 9.05(1). 166 To the extent that it is necessary to show, in a joinder application, an arguable case against the party to be joined, I am satisfied that, for the reasons given above, such a case has been demonstrated against ZTE Corporation. 167 There being no pleading objections, I am satisfied that it is appropriate to grant leave to the applicant to amend its originating application, statement of claim and particulars in the way proposed. 168 As to the question of service out of Australia, I am satisfied that, based on the originating application, statement of claim and particulars being amended as proposed (for which appropriate orders will be made), the Court has jurisdiction in the proceeding; that the proceeding is of a kind mentioned in r 10.42 (see [34] above); and that a prima facie case has been established for all or any of the relief claimed, as required by r 10.43(4). 169 Further, the application for service outside Australia has been accompanied by an affidavit satisfying the requirements of r 10.43(3). 170 I am satisfied that, in all the circumstances, leave should be granted to the applicant to serve the originating application (as proposed to be amended) on ZTE Corporation in the People's Republic of China in accordance with the Hague Convention.

Disposition 171 The parties are to bring in agreed draft orders giving effect to these reasons by 4.00 pm on 13 March 2015. I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.