ResMed ‘withdraws’ USITC complaint v Fisher & Paykel

New Zealand-based Fisher & Paykel Healthcare said California-headquartered ResMed filed a motion with the US International Trade Commission (USITC) to terminate a current investigation by withdrawing its complaint against Fisher & Paykel Healthcare.

Reuters reported that ResMed lodged its complaint with the USITC last August, after filing court proceedings in multiple countries, asking the trade body to investigate and stop Fisher & Paykel Healthcare importing its sleep masks into the United States.

ResMed claims the New Zealand firm’s masks violate its patented technology.

ResMed general counsel David Pendarvis said ResMed filed the motion to dismiss the complaint so that it can refile and incorporate additional evidence generated since the original complaint was filed.

“We believe this will make our strong case even stronger, and we remain confident in our position in the ITC,” said Pendarvis.

“ResMed’s innovations have transformed the treatment of sleep-disordered breathing.

“We’re committed to protecting our innovation, which is why we’ve engaged in global legal proceedings with Fisher & Paykel.”

Fisher & Paykel Healthcare said: “The withdrawal of the complaint with the USITC does not impact the patent litigation proceedings involving Fisher & Paykel Healthcare and ResMed in the US District Court, Germany, the UK and New Zealand.”

Fisher & Paykel Healthcare said ResMed had been seeking an exclusion order through the USITC which, if granted, could have prevented the import of Fisher & Paykel Healthcare’s Simplus and Eson range of masks into the US.

“Following a pre-trial ruling by the US ITC Administrative Law Judge concerning ResMed’s evidence of domestic industry, ResMed has today notified Fisher & Paykel Healthcare that it has filed an unopposed motion for termination of the investigation by withdrawal of the complaint,” said Fisher & Paykel Healthcare.

“The unopposed motion to terminate is still to be approved by the Administrative Law Judge and requires approval from the full Commission.

“ResMed also indicated in today’s filing that it intends to file an additional ITC complaint.”

Fisher & Paykel Healthcare CEO Lewis Gradon said: “We are pleased with today’s developments.

“As we said when these proceedings commenced in August last year we are confident in our intellectual property position.

“Should ResMed request that the ITC conduct another investigation, we will vigorously contest this and we remain confident in regards to future proceedings.”

Fisher & Paykel Healthcare said it filed patent infringement proceedings in August 2016 in the US District Court for the Southern District of California seeking judgment that ResMed’s AirSense 10 and AirCurve 10 range of flow generator products, ClimateLineAir heated air tubing, and water chambers for use with such flow generator products, as well as Swift LT and Swift FX masks, infringed patents held by Fisher & Paykel Healthcare.

Fisher & Paykel Healthcare said that subsequently, ResMed counterclaimed in the US District Court, filed proceedings in Germany and New Zealand and requested that the ITC conduct an investigation into patent infringement allegations.