By John Presper
On December 11, 2013, the ITC issued an order and notice instituting an advisory opinion proceeding in Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof (Inv. No. 337-TA-879).

By way of background, the investigation was based on a March 28, 2013 complaint and April 19, 2013 letter supplementing the complaint filed by ResMed Corp., ResMed Inc., and ResMed Ltd. (collectively, “ResMed”) alleging violation of Section 337 in the importation and sale of certain sleep-disordered breathing treatment systems and components thereof that infringe one more claims of U.S. Patent Nos. 7,159,587; 7,487,772; 7,997,267; 7,743,767; 6,216,691; 6,935,337 and 7,614,398.  See our March 29, 2013 post for more details on the complaint.  The Respondents in the investigation were Apex Medical Corp. and Apex Medical USA Corp. (collectively, “Apex”), and Medical Depot Inc., d/b/a Drive Medical Design & Manufacturing (“Medical Depot”).  Order Nos. 8 and 11 terminated the investigation as to Medical Depot and Apex, respectively, based on consent orders in July 2013.

According to the Order, Apex filed a request asking the ITC to institute an advisory opinion proceeding to declare that their redesigned sleep-disordered breathing treatment systems are not covered by the consent order. Based on Apex’s compliance with Commission Rule 210.79, the ITC determined to institute the requested advisory opinion proceeding.  Furthermore, the ITC ordered that the advisory opinion proceeding be completed as expeditiously as practicable.

Lastly, Chief ALJ Charles E. Bullock issued a notice indicating that ALJ E. James Gildea will be the presiding administrative law judge in this advisory opinion proceeding.