By Alex Englehart
On July 19, 2013, ResMed Corp. of San Diego, California, ResMed Inc. of San Diego, California, and ResMed Ltd. of Australia (collectively, “ResMed”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that BMC Medical Co., Ltd. of China, 3B Medical, Inc. of Lake Wales, Florida, and 3B Products, L.L.C. of Lake Wales, Florida (collectively, “BMC”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain sleep-disordered breathing treatment systems and components thereof that infringe one or more claims of U.S. Patent Nos. 7,997,267 (the ‘267 patent), 7,614,398 (the ‘398 patent), 7,938,116 (the ‘116 patent), 7,341,060 (the ‘060 patent), 8,312,883 (the ‘883 patent), 7,178,527 (the ‘527 patent), 7,950,392 (the ‘392 patent), and 7,926,487 (the ‘487 patent) (collectively, the “asserted patents”).

According to the complaint, the asserted patents generally relate to medical systems used in the treatment of sleep-disordered breathing (SDB), particularly obstructive sleep apnea (OSA).  In particular, the ‘267 patent relates to a respiratory mask assembly for delivering breathable air to a patient.  The ‘398 patent relates to a humidifier for humidifying air in a Continuous Positive Airway Pressure (CPAP) system.  The ‘116 and ‘060 patents relate to a respiratory mask assembly including a frame for delivering breathable air to a patient.  The ‘883 patent relates to a nasal assembly for delivering air to a patient.  The ‘487 patent relates to a vent assembly for use with a respiratory mask of the type used in a CPAP machine.  Lastly, the ‘527 and ‘392 patents relate to a nasal cushion and a nasal mask.

In the complaint, ResMed states that BMC imports and sells products that infringe the asserted patents.  The complaint specifically refers to BMC’s Willow, iVolve, RESmart CPAP, and RESmart Auto-CPAP as infringing products.

Regarding domestic industry, ResMed states that various components of its SDB treatment systems are protected by the asserted patents.  As to the economic prong, ResMed states that it conducts research and development, manufactures certain components, packages and sells SDB treatment systems, and conducts other activities designed to exploit the asserted patents in the U.S.  ResMed specifically refers to its facilities in California and South Carolina. 

As to related litigation, ResMed states that on March 28, 2013, it filed an ITC complaint against Apex Medical Corp. and others alleging infringement of some of the asserted patents.  The ITC subsequently instituted an investigation (Inv. No. 337-TA-879) based on that complaint.  See our April 30, 2013 post for more details.  ResMed also refers to a related district court case, which has been stayed pending resolution of the 879 investigation.  ResMed further states that on May 29, 2013, it sued BMC in the U.S. District Court for the Southern District of California, alleging infringement of many of the same patents asserted in the instant ITC complaint.  ResMed also refers to an Australian case involving the University of Sydney, which has now settled.

With respect to potential remedy, ResMed requests that the Commission issue a permanent limited exclusion order and a permanent cease and desist order directed at BMC.