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.