Updated with comments from ResMed & 3B Medical.
The dispute is part of a long-standing conflict between the 2 companies over patents related to continuous positive airway pressure devices.
BMC said that it cross-appealed the ITC’s orders related to ResMed patents related to masks used with CPAP products, and in March the ITC remanded the case to itself to determine “whether ResMed’s activities and investments in the United States qualify as a “domestic industry,” according to a press release.
The Chinese company reported that the ITC said that a recent decision from the Federal Court “would appear to stand as an obstacle to ResMed’s proof of the existence of a domestic industry related to the mask patents,” and that it would “suspend its remedial orders, which are directed to the mask patents, as it considers the issue,” according to the press release.
ResMed responded back by filing a new legal action with the ITC against BMC, claiming both of the Chinese company’s flow generator products, the RESmart and Luna, infringe on 2 claims of ResMed’s patent.
San Diego, Calif.-based ResMed said that the U.S. PTO has previously rejected challenges by BMC against the claims confirming validity.
“ResMed built its market leadership by investing in superior technology for sleep-disordered breathing therapy. The proprietary technology in our flow generators and humidifiers makes them comfortable and user-friendly, and patients should be sure to get ResMed’s high-quality complete solutions to enjoy the health benefits of successful CPAP treatment. We will continue to defend our proprietary technology by enforcing our patents against those who unfairly copy our products,” ResMed GC David Pendarvis said in a press release.
The company said it is asserting 3 additional patents against BMC’s Luna and ReSmart, and will be asking the ITC to stop BMC and 3B from importing the products to the U.S.
3B and BMC Medical responded ResMed’s new filing, saying that in the most recent ITC and Federal Circuit decisions, ResMed had lost in its attempt to exclude 3B Medical’s flow generators from the market.
The company remarked on ResMed’s new filing, calling it “desperate” and an attempt to “stifle legitimate and fair competition, to the detriment of industry participants and U.S. consumers,” according to an emailed statement from 3B.
“ResMed’s 2nd patent suit only strengthens 3B Medical’s ongoing antitrust case against ResMed, and we don’t think it will sit well with the jury in that case. 3B Medical strongly believes that the outcome of the antitrust case will ensure that this industry is no longer captive to a bully trying to kill competition and keep prices high, including by filing frivolous follow-on patent litigation against small competitors after losing initial lawsuits,” 3B Medical prez Thomas Thayer said in a prepared release.
BMC said the German Federal Patent Court had accepted all requests from BMC and nullified the German part of a European patent relating to a CPAP system with a detachable water tank in the attacked scope, while non-attacked claims were maintained.
Last July, BMC said it won a European litigation against ResMed over an infringed patent for a continuous positive airway pressure respiratory system machine with a detachable water tank.
The 1st District Court of Munich lifted a preliminary injunction against BMC’s CPAP machine during the hearing and issued a judgement in favor of BMC Medical, the Beijing, China-based company said.
The court also ruled to suspend parallel patent infringement proceedings until a decision is made in the invalidation proceedings, BMC Medical said.
ResMed general counsel David Pendarvis told MassDevice.com in an email that a final decision on BMC’s infringement on ResMed’s flow generator patents “will not be made until later this year when the German court addresses the validity of the ResMed patent asserted in the case.”
“The decision made by the German court that is the subject of the BMC press release issued on Tuesday, June 23 is an interim decision on a single issue involving a single patent asserted against the sale of BMC flow generators in Germany,” Pendarvis said.
In December 2014, BMC claimed a win in a related proceeding in Germany. In August, ResMed and BMC each declared victory after the International Trade Commission issued a mixed decision, ruling that 9 of BMC’s products each violated at least 1 of ResMed’s patents and that certain of ResMed’s patents were invalid.
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