Nokia Technologies OY v OnePlus Limited Technology (Shenzhen) Co, LTD & Ors.

Evidence concerning a witness’s subjective intention is generally of limited relevance where the issue to be decided is how a device or product actually works. It may nevertheless be admitted where it could assist on an ancillary issue, such as identifying the relevant software version or the timing of a change, or where it provides limited contextual consistency to a party’s case. Admission may be provisional. The court may revisit relevance at a pre-trial review or trial, particularly where the evidence is unsupported, cannot readily be tested in cross-examination, or is likely to carry little weight.

This was a procedural ruling in patent proceedings between Nokia Technologies OY and several OnePlus and Oppo defendants. The defendants sought permission to rely on a late-served Civil Evidence Act Notice introducing a statement from Mr Mirea of Qualcomm, the designers of the relevant chips. The statement concerned a software change, the reason for it, and a particular software version. Nokia submitted that evidence of subjective intention was irrelevant because the central trial issue would be how the device actually worked.

The court was asked whether the statement should be admitted and whether Nokia should have permission to call Mr Mirea for cross-examination.

1. The statement was admitted, subject to procedural safeguards and the reservations expressed by the court. The statement was high-level and lacked supporting documentary material, but it could have marginal relevance to identifying the correct code version, determining when changes were made, and providing some consistency with the defendants’ wider evidence.

2. The court largely accepted Nokia’s submission that subjective intention was not relevant to the fundamental question of how the device actually worked. Admission therefore did not imply that the statement would be relevant to, or carry weight on, the substantive technical issues.

3. Relevance and weight were distinct. The statement might ultimately be found irrelevant, or might be given little weight, especially if Mr Mirea could not be cross-examined or Nokia lacked documents with which to test his evidence. The court retained an open mind and could reconsider the issue at the pre-trial review or trial.

4. Nokia was given permission to call Mr Mirea for cross-examination. The defendants were urged to keep the position under review because the evidential benefit was modest and the statement might prove unnecessary.

5. The court also considered the procedural burden imposed on Nokia, the possible costs consequences, the evolving scope of the defendants’ proposed declaration of non-infringement, and the desirability of avoiding unnecessary amendment to Dr Crols’s expert report at that stage.