By Eric Schweibenz
On December 23, 2014, the International Trade Commission (the "Commission") issued a notice determining that a Section 337 violation has occurred in Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof (Inv. No. 337-TA-890). The Commission also issued a limited exclusion order and cease and desist orders directed to domestic respondents.

By way of background, the investigation is based on a complaint filed by ResMed Corporation, ResMed Incorporated, and ResMed Limited (collectively, "ResMed") alleging violation of Section 337 by BMC Medical Co., Ltd., 3B Medical, Inc., and 3B Products, L.L.C. (collectively, "Respondents") in the importation and/or sale of certain sleep-disordered breathing treatment systems and components thereof that infringe one or more claims of various patents.  See our July 22, 2013 and August 20, 2013 posts for more details on ResMed's complaint and the Notice of Investigation, respectively.  On August 22, 2014, ALJ Pender issued a notice of the initial determination ("ID") finding a violation of Section 337 with respect to U.S. Patent Nos. 7,178,527 (the '527 patent); 7,950,392 (the '392 patent); 7,997,267 (the '267 patent); 7,341,060 (the '060 patent); 8,312,883 (the '883 patent); and RE 44,453 (the '453 patent).  ALJ Pender further determined that there has been no violation with respect to U.S. Patent No. 7,926,487 (the '487 patent).  See our August 25, 2014 post for more details.  On October 16, 2014, the Commission determined to review the ID with respect to the ALJ's construction of the claim term "gas washout vent" and construed the limitation to mean "a vent comprising a thin air permeable membrane extending across an opening for exhausting gas to the atmosphere."

According to the December 23, 2014 notice, the Commission determined that under its construction of the disputed term "gas washout vent", a violation of Section 337 has not occurred because ResMed failed to show that its domestic industry products practice the '487 patent.  Regarding the '435 patent, the Commission determined that the prior art REMstar device anticipates the asserted claims under the Commission's construction of the claim term "a retaining mechanism configured to secure the connecting structure to the CPAP apparatus."  Otherwise, the Commission found a violation of Section 337 with respect to certain claims of the '527, '392, '267, '060, and '883 patents and issued a limited exclusion order directed towards Respondents and cease and desist orders directed towards domestic respondents.  Lastly, the Commission also determined that the public interest factors do not preclude issuance of the limited exclusion order or cease and desist orders.