There can be a lot of uncertainty in deciding whether to commence patent infringement proceedings. They are expensive, and you want to get this decision right.
A key factor is often a lack of detailed understanding of the alleged infringing product or process. The patent owner has to figure out a way to reduce uncertainty in light of this.
Courts around the world have mechanisms to allow potential applicants (plaintiffs) to obtain information in order to make this type of assessment. Seeking Preliminary Discovery and Notices to Produce are two examples before the Australian Federal Court.
In a recent case (Oxford Nanopore Technologies Plc v MGI Australia Pty Ltd [2025] FCA 572), the proposed Applicant (Plaintiff) sought Preliminary Discovery (this application is yet to be heard) and also filed a Notice to Produce certain documents. This decision dealt with the Notice to Produce and denied an Order for Production of documents in category 1 (Not justified by reference to the factual issues which have been identified by MGI) and category 3 (documents recording or evidencing a delegation of authority to start proceedings are beside the point).
While each party will no doubt take away some tactical benefits from this case, sometimes it may be better to write to the alleged infringer, ask them to provide evidence of non infringement, and if it is insufficient, simply sue them.