By Eric Schweibenz and John Presper
On August 31, 2018, ResMed Corp. and 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 Fisher & Paykel Healthcare Limited of New Zealand, Fisher & Paykel Healthcare, Inc. of Irvine, California, and Fisher & Paykel Healthcare Distribution Inc. of Irvine, California (collectively, “FPH” or “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain sleep-disordered breathing treatment masks systems and components thereof that infringe one or more claims of U.S. Patent Nos. 9,119,931 (“the ’931 patent”), 9,027,556 (“the ’556 patent”), 9,962,511 (“the ’511 patent”), 9,962,510 (“the ’510 patent”), and 9,937,315 (“the ’315 patent”).

According to the complaint, the asserted patents generally relate to full-face and nasal mask systems for the treatment of sleep-disordered breathing (“SDB”), particularly obstructive sleep apnea (“OSA”). In particular, the ’931, ’556, and ’511 patents relate to mask systems for treatment of SDB via the delivery of a supply of air at positive pressure into the patient’s airway. The ’510 and ’315 patents relate to mask systems for delivering breathable gas to a patient.

In the complaint, ResMed asserts that the Proposed Respondents import and sell products that infringe the asserted patents. The complaint specifically identifies the Simplus™, the Eson™, and the Eson™ 2 masks systems as accused products that are made, sold, offered for sale, and/or imported by the Proposed Respondents.

ResMed states that a domestic industry exists and/or is in the process of being established through its significant investments in plant and equipment and significant employment of labor and capital in the U.S., particularly at ResMed’s facilities in Chatsworth, California and Atlanta, Georgia. ResMed specifically points to its Quattro™ FX, Quattro™ FX for Her, AirFit™ F20, and AirFit™ F20 for Her mask systems as domestic industry products that practice at least one claim of each asserted patent.

As to related litigation, ResMed identified the following: (i) Certain Sleep-Disordered Breathing Treatment Mask Systems and Components Thereof, Inv. No. 337-TA-1022, instituted on September 19, 2016; (ii) Fisher & Paykel Healthcare Limited v. ResMed Corp., No. 3:16-cv-02068 (S.D. Cal.), filed August 16, 2016; (iii) ResMed Inc. et al v. Fisher & Paykel Healthcare Corporation Ltd. et al., No. 3:16-cv-02072 (S.D. Cal.), filed August 16, 2016; (iv) Fisher & Paykel Healthcare Limited v. ResMed Corp., No. 2:16-cv-06099 (C.D. Cal.), filed August 15, 2016; (v) ResMed Corp., et al. v. Fisher & Paykel, et al., No. 3:02-cv-01709 (S.D. Cal.), filed August 26, 2002; and (vi) eight IPR petitions: IPR2017-00061, IPR2017-00062, IPR2017-00064, IPR2017-00065, IPR2017-01658, IPR2017-01659, IPR2017-00501, and IPR2017-00504.

Regarding potential remedy, ResMed requests that the Commission issue a permanent limited exclusion order and permanent cease-and-desist orders directed to the Proposed Respondents.