The U.S. International Trade Commission yesterday opened a probe into BMC Medical‘s importation of sleep apnea devices, as the long-running patent infringement war between the Chinese company and ResMed (NYSE:RMD) grinds on.
ResMed asked the ITC to investigate BMC and its U.S. distributor, 3B Medical, alleging that the Lunaflow and RESmart flow generators for its continuous positive airway pressure devices infringe a quartet of ResMed patents. The San Diego-based company wants the trade commission to ban the importation and sale of BMC’s allegedly offending devices in the U.S.
Yesterday the ITC granted ResMed’s request, saying its chief administrative law judge would appoint a judge to oversee the probe.
“ResMed has developed leading edge solutions for the treatment of sleep apnea and other respiratory conditions,” ResMed general counsel & chief administrative officer David Pendarvis said in prepared remarks. “ResMed’s proprietary innovations provide key benefits to patients, including increased comfort and usability, that help with successful CPAP therapy. We are appreciative of the ITC’s decision to investigate the alleged infringement. We will continue to defend our proprietary technology that underscores the high-quality solutions we provide to patients in the United States and around the world.”
BMC and 3B Medical vowed to “step up” the battle with ResMed via new filings with the U.S. Patent & Trademark Office.
“ResMed has opened up a new front in the battle with a new action in the International Trade Commission,” the companies said in a press release.
“We will, as always, continue to defend, and will escalate this battle further to new filings before the Patent Trial & Appeal Board. We are also moving quickly towards a jury trial in our antitrust case against ResMed and look forward to a jury verdict rebuking ResMed’s business practices. We believe we are winning the larger fight to demonstrate greater value where it counts, in the hearts and minds of [durable medical equipment] owners and their patients,” added president Thomas Thayer said in the statement.
The spat between ResMed and BMC devolved into a flurry of counter-accusations last month, with each side claiming the upper hand. 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.
ResMed general counsel David Pendarvis told MassDevice.com at the time 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 told us via email.
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.
Registration is open for DeviceTalks Boston! Join us on June 5-6, 2019, as we explore the trends and technology that are shaping the future of the medical device industry.