ITC to probe Fisher & Paykel over sleep apnea imports

The U.S. International Trade Commission today announced it will investigate certain sleep apnea devices made by Fisher & Paykel Healthcare (NZE:FPH) following a complaint by ResMed (NYSE:RMD) that imported products violated its patents.

ResMed filed the complaint in August, according to the U.S. ITC, alleging “violations of section 337 of the Tariff Act of 1930” through the importation of sleep-disordered breathing masks and components by Fisher & Paykel which infringed on ResMed patents.

The allegations include both products from New Zealand-based Fisher & Paykel and 2 of its U.S. units in California.

ResMed also requeted that the U.S. ITC “issue a limited exclusion order and cease and desist orders,” according to a press release.

While the U.S. ITC said it will assign the case to a judge to hold a hearing, it clarified that it “has not yet made any decision on the merits of the case.” The administrative law judge assigned to the case will “make an initial determination as to whether there is a violation of section 337,” the U.S. ITC said.

In August, ResMed and Fisher & Paykel erupted into a legal war, with lawsuits flying in the U.S., Germany, New Zealand and the U.S. International Trade Commission alleging infringement on both sides.

Fisher & Paykel initiated the hostilities with an August 15 lawsuit in a California federal court, alleging that ResMed’s AirSense 10 and AirCurve 10 flow generators, ClimateLineAir heated air tubing and Swift mask line infringe 11 of its patents. The Auckland, N.Z.-based company moved to withdraw that suit the next day, but reserved the right to sue again, according to documents filed with the U.S. District Court for Central California.

ResMed announced a responding barrage, with actions filed in another California federal court, plus Germany, New Zealand and the ITC. The lawsuit filed in the U.S. District Court for Southern California alleges that Fisher & Paykel’s Simplus full face mask, Eson nasal mask and Eson 2 nasal mask infringe 4 of ResMed’s patents and asks the court to invalidate its Down Under rival’s patents, find that it’s not infringing, or both.

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