Compliance with 3G Standards ‘Prima Facie’ Evidence of Infringement

A recent procedural decision of the Federal Court of Australia (Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 4) [2015] FCA 177) has revealed new details of the case against Chinese telecoms equipment manufacturer ZTE by Vringo Infrastructure, Inc.

Vringo is a US-based non-practising entity (NPE) which commenced patent infringement proceedings against the Australian subsidiary of the Chinese company ZTE Corporation back in June 2013.  Although Vringo has been called a ‘patent troll’ by some media outlets (e.g. smartcompany.com.au and itwire.com), I have previously disputed that description in the case of this litigation by Vringo.

In the most recent development, the Federal Court has granted an application by Vringo allowing it to have the Chinese parent company joined to the proceedings in Australia.  I believe that Vringo’s motivation for this latest move is because it wishes to obtain further technical details regarding the ZTE products it is alleging to infringe its patents.  By adding the Chinese company – which manufactures the products – as a respondent, Vringo will be able to ask the court to order discovery by ZTE Corporation of the information Vringo needs in order to prove infringement.

Other interesting details to emerge from the recent decision are:

1. that the accused products include a USB device used to access a 4G cellular mobile data network supplied by ZTE to Telstra;
2. the accused products further include an item of network equipment identified as the ZXWN MSCS Mobile Switching Center Server; and
3. the Vringo patents are said to be essential to implementation of standardised mobile data networking features including HSPA+ in 3G networks, and the Radio Link Protocol (RPL) which is a feature of 2G networks that was carried over into 3G.

The decision is also interesting in showing the relatively low bar set for establishing a prima facie case of infringement at an early stage of patent proceedings, i.e. prior to the availability of detailed evidence.  Vringo was able to meet its burden by relying upon analysis prepared by a patent attorney (i.e. without the evidence of an established technical expert), and based only upon a comparison between the patent claims and the technical standards documents (i.e. without reference to the operation of the actual products said to infringe the patents).

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Tags: Australia, Licensing, Patent litigation, Patent pools, Trolls, Vringo, ZTE