15
Apr
By Eric Schweibenz and Lisa Mandrusiak
On April 14, 2016, ResMed Corp., ResMed Inc., and ResMed Ltd. (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, LLC of Lake Wales, Florida (collectively, the “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 systems and components thereof that infringe—or are made, produced, or processed by a process that infringes—one or more claims of U.S. Patent Nos. RE44,453 (the ‘453 patent), 8,020,551 (the ‘551 patent), 8,006,691 (the ‘691 patent), and 9,072,860 (the ‘860 patent) (collectively, the “asserted patents”).

According to the complaint, the asserted patents generally relate to medical systems used in the treatment of sleep disorders such as sleep apnea.  More specifically, the ‘453 patent relates to a flow generator with a humidifier structured to prevent the backflow of liquid.  The ‘551 patent is also directed to a flow generator, but with a humidifier structured to allow for flexible use and removal of the water chamber.  The ‘691 patent discloses a CPAP system including a humidifier with a removable water tank adapted to provide a smaller CPAP device with improved performance and reduced noise.  Finally, the ‘860 patent generally discloses a humidifier structured to integrate with a flow generator.

In the complaint, ResMed states that the Proposed Respondents import and sell products that infringe the asserted patents.  The complaint specifically refers to various CPAP systems associated with the Proposed Respondents as infringing products.

Regarding domestic industry, ResMed states that its sleep-disordered breathing treatment systems and components thereof practice at least one claim of each asserted patent.  Moreover, ResMed states that it conducts significant domestic industry activities in the United States, including research, development, and manufacturing of electric motors as well as significant investments in plant, labor, and capital.  ResMed particularly notes it has facilities in California, Georgia, and Colorado.

As to related litigation, ResMed states that on July 19, 2013 it filed a complaint at the ITC against the same Proposed Respondents alleging infringement of the parent patent of the ‘453 patent as well as additional patents.  This case is pending on appeal.  Additionally, ResMed notes that the Proposed Respondents have requested inter partes review of the ‘453 patent, and some (but not all) claims were found unpatentable.  On March 28, 2013, ResMed filed a complaint with the ITC against Apex Medical Corp., Apex Medical USA Corp, and Medical Depot Inc. alleging infringement of the parent patent of the ‘453 patent as well as additional patents.  This case was terminated by consent order.  ResMed filed a complaint in the District Court in the Central District of California against Apex Medical Corp., Apex Medical USA Corp, and Medical Depot Inc. alleging infringement of the parent patent of the ‘453 patent among other patents.  The case was dismissed without prejudice as stipulated by the parties.  On May 29, 2013, ResMed filed suit against the Proposed Respondents in the District Court in the Southern District of California alleging infringement of the parent patent to the ‘453 patent among other patents.  This case has been stayed.

With respect to potential remedy, ResMed requests that the Commission issue a limited exclusion order and cease and desist orders directed at the Proposed Respondents, as well as impose a bond during the Presidential review period.