Resmed v. Resmed Et. Al.

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Roger A. Denning, SBN 228998, denningIr.com
Seth M. Sproul, SBN 217711, sproulIr.com
Scott A. Penner, SBN 253716, pennerIr.com
Fish & Richardson P.C.
12390 El Camino Real
San Diego, CA 92130
Phone: 858-678-5070 / Fax: 858-678-5099

Frank E. Scherkenbach, SBN 142549, scherkenbachIr.com
Fish & Richardson P.C.
One Marina Park Dr.
Boston, MA 02210
Phone: 617-542-5070 / Fax: 617-542-8906

$WWRUQHyV IRU 3ODLQWLIIV

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RESMED INC., a Delaware Corporation,
RESMED CORP, a Minnesota
Corporation, and RESMED LTD, an
Australian Corporation,

PlaintiIIs,
v.

BMC MEDICAL CO., LTD., a Chinese
Corporation, 3B PRODUCTS, L.L.C. a
Florida Limited Liabilit\ Compan\, and
3B MEDICAL, INC., a Florida
Corporation,
DeIendants.

Case No.

&20PLAINT FOR PATENT
INFRINGEMENT

1URY TRIAL DEMANDED

'13CV1246 WMC MMA

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PlaintiIIs ResMed Inc., ResMed Corp, and ResMed Ltd (collectively
'PlaintiIIs or 'ResMed) hereby Iile this complaint against DeIendants BMC
Medical Co., Ltd., 3B Products, L.L.C., and 3B Medical, Inc. and allege as
Iollows:
1. PlaintiII ResMed Inc. is a corporation organized under the laws oI the
state oI Delaware with its principal place oI business in San Diego, CaliIornia.
2. PlaintiII ResMed Corp is a corporation organized under the laws oI the
state oI Minnesota with its principal place oI business in San Diego, CaliIornia.
3. PlaintiII ResMed Ltd is a corporation organized under the laws oI
Australia, having its principal place oI business in Bella Vista, New South Wales,
Australia.
4. ResMed Corp and ResMed Ltd are, respectively, direct and indirect
subsidiaries oI ResMed Inc.
5. As used herein, the term 'PlaintiIIs or 'ResMed means individually
and/or collectively ResMed Inc., ResMed Corp, and ResMed Ltd.
6. On inIormation and belieI, DeIendant BMC Medical Co., Ltd.
('BMC) is a corporation organized under the laws oI the country oI China with its
principal place oI business at 5/F Main Building, No.19 Gucheng Street West,
Shijingshan, Beijing 100043, China.
7. On inIormation and belieI, DeIendant 3B Medical, Inc. ('3B Medical)
is the U.S. subsidiary oI BMC. On inIormation and belieI, 3B Medical is a
corporation organized under the laws oI the state oI Florida with its principal place
oI business at 21301 US Highway 27,Lake Wales, FL 33859
8. On inIormation and belieI, DeIendant 3B Products, L.L.C. ('3B
Products) is a limited liability company organized under the laws oI the state oI
Florida with its principal place oI business at 21301 US Highway 27, Lake Wales,
FL 33859.

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9. As used herein, the term '3B means collectively 3B Medical and 3B
Products.
10. As used herein, the term 'DeIendants means individually and/or
collectively BMC and 3B.
1URISDICTION AND VENUE
11. This Court has subject matter jurisdiction over the claims pleaded
herein under 28 U.S.C. 1331, 1338(a), and 2201(a) because the actions below
concern a Iederal question arising under the patent laws oI the United States,
including 35 U.S.C. 271.
12. Venue is proper in this judicial district under 28 U.S.C. 1391(b), (c)
and 1400(b) because, among other reasons, DeIendants are subject to personal
jurisdiction in this judicial district and have committed acts oI inIringement in this
judicial district or will imminently commit acts oI inIringement in this judicial
district.
13. Upon inIormation and belieI, DeIendants have placed inIringing
products and/or will place inIringing products into the stream oI commerce by
shipping those products into this judicial district and/or by knowing that such
products would be shipped into this judicial district. DeIendants` established
distribution network distributes accused products directly to customers located in
this district. For those products soon to be released in the United States,
DeIendants` established distribution network would distribute the accused products
directly to customers located in this district.
14. For example, upon inIormation and belieI, BMC`s established
distribution network distributes accused products to intermediary suppliers like 3B,
who distribute the products nationally, including in this district. By importing into
the United States, shipping into, selling, oIIering to sell, and/or using products that
inIringe the patents-in-suit in this district, or by inducing or causing those acts to
occur, DeIendants have transacted and continue to transact business and perIorm

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work and services in this district, have supplied and continue to supply services and
things in this district, have caused and continue to cause injury and damages in this
district by acts and omissions in this district, and have caused and continue to cause
injury and damages in this district by acts or omissions outside oI this district while
deriving substantial revenue Irom services or things used or consumed within this
district, and will continue to do so unless enjoined by this Court.
THE PATENTS
15. ResMed Ltd is the owner by assignment oI all right, title, and interest
in and to United States Patent No. 7,159,587 entitled 'Respiratory Mask Having Gas
Washout Vent And Gas Washout Vent Assembly For Respiratory Mask,
(hereinaIter 'the `587 patent), which was duly and legally issued on January 9,
2007. The `587 patent is valid, enIorceable, and currently in Iull Iorce and eIIect. A
copy oI the `587 patent is attached as Exhibit A.
16. ResMed Inc. is the exclusive licensee oI the `587 patent and has
exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
in and to United States Patent No. 7,487,772 entitled 'Ergonomic And Adjustable
Respiratory Mask Assembly With Elbow Assembly, (hereinaIter 'the `772
patent), which was duly and legally issued on February 10, 2009. The `772 patent
is valid, enIorceable, and currently in Iull Iorce and eIIect. A copy oI the `772
patent is attached as Exhibit B.
in and to United States Patent No. 7,614,398 entitled 'HumidiIier With Structure To
Prevent BackIlow OI Liquid Through The HumidiIier Inlet, (hereinaIter
'the `398 patent), which was duly and legally issued on November 10, 2009. The

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`398 patent is valid, enIorceable, and currently in Iull Iorce and eIIect. A copy oI
the `398 patent is attached as Exhibit C.
Respiratory Mask Assembly With Headgear Assembly, (hereinaIter
'the `116 patent), which was duly and legally issued on May 10, 2011. The `116
patent is valid, enIorceable, and currently in Iull Iorce and eIIect. A copy oI the
`116 patent is attached as Exhibit D.
Respiratory Mask Assembly With Headgear Assembly, (hereinaIter
'the `060 patent), which was duly and legally issued on March 11, 2008. The `060
patent is valid, enIorceable, and currently in Iull Iorce and eIIect. A copy oI the
`060 patent is attached as Exhibit E.
in and to United States Patent No. 8,312,883 entitled 'Nasal Assembly, (hereinaIter
'the `883 patent), which was duly and legally issued on November 20, 2012. The
`883 patent is valid, enIorceable, and currently in Iull Iorce and eIIect. A copy oI
the `883 patent is attached as Exhibit F.

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27. As used herein, the term 'Patents-in-Suit means individually and/or
collectively the `587 patent, the `772 patent, the `060 patent, the `883 patent, the
`116 patent, and the `398 patent.
BACKGROUND
28. ResMed is a leading developer, manuIacturer and distributor oI medical
equipment Ior treating, diagnosing, and managing sleep-disordered breathing and
other respiratory disorders. The company is dedicated to developing innovative
products to improve the lives oI those who suIIer Irom these conditions and to
increasing awareness among patients and healthcare proIessionals oI the potentially
serious health consequences oI untreated sleep-disordered breathing (sometimes
reIerred to as 'SDB). Since its Iounding in 1989, ResMed has Iocused on
developing and commercializing systems Ior the treatment oI obstructive sleep
apnea ('OSA), a major subset oI SDB. ResMed`s development oI innovative
therapies Ior the treatment oI OSA has resulted in over 3,000 patents granted or
pending worldwide, and its product line incorporates technology that is a highly
eIIective and proven way to treat OSA.
29. ResMed`s portIolio oI SDB products includes Ilow generators,
humidiIiers, diagnostic products, mask systems, headgear and other accessories,
including, Ior example, certain sleep-disordered breathing treatment Iull Iace masks,
including the Quattro FX, Quattro FX Ior Her, and Mirage Quattro. ResMed`s SDB
products also include certain sleep-disordered breathing treatment nasal masks,
including the Mirage FX, Mirage FX Ior Her, Mirage Liberty, Mirage Micro,
Mirage Activa LT and Mirage Vista. ResMed`s SDB products also include certain
sleep-disordered breathing treatment nasal pillows, including the SwiIt FX, SwiIt
FX Ior Her, SwiIt FX Bella Gray, SwiIt FX Bella, SwiIt LT Ior Her, and Mirage
SwiIt II. In addition, ResMed`s SDB products include certain sleep-disordered
breathing treatment systems that consist in part oI a Ilow generator, such as the
multiple variations oI ResMed`s S9 Ilow generator.

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30. ResMed marks its patents on some products and marks all oI its
products on its website at: www.resmed.com/ip.
31. On inIormation and belieI, BMC, on its own and/or through its
subsidiaries, is in the business oI manuIacturing, packaging, importing, selling,
oIIering to sell, and/or distributing a variety oI sleep-disordered breathing treatment
systems and components thereoI including (a) Ilow generators, including but not
limited to, BMC`s CPAP machines, such as the BMC-630A and BMC-630C ('the
Accused Machines); (b) nasal pillows, including, but not limited to, BMC`s Willow
product line ('the Accused Nasal Pillows); and (c) masks, including, but not
limited to BMC`s iVolve product line ('the Accused Nasal Masks). As used
hereinaIter, the phrase 'Accused Products shall mean individually and collectively
the Accused Machines, the Accused Nasal Masks and the Accused Nasal Pillows.
32. On inIormation and belieI, in March 2013, DeIendants imported an
iVolve mask into the United States where it was displayed at a trade show in Las
Vegas, NV. On inIormation and belieI, this was done in anticipation oI oIIering Ior
sale and selling the iVolve in the United States.
33. On inIormation and belieI, DeIendants have completed the creation oI
marketing materials, including speciIications and user manuals, Ior the iVolve.
DeIendants have also created multiple webpages, accessible in the United States,
and in this jurisdiction, marketing the iVolve. On inIormation and belieI,
DeIendants have undertaken this activity in anticipation oI oIIering to sell and
selling the Accused Nasal Masks in the United States.
34. On inIormation and belieI, BMC oIIers Ior sale, sells, licenses, and/or
distributes the Accused Products in the United States, including within this district,
and/or imports the Accused Products into the United States.
35. 3B is an importer and seller oI durable medical equipment such as
sleep-disordered breathing treatment systems and components thereoI. 3B markets
and sells the Accused Products in the United States.

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36. On inIormation and belieI, 3B obtains the Accused Products Irom
BMC and sells them in the United States and this district.
37. On inIormation and belieI, 3B oIIers Ior sale, sells, licenses, and/or
distributes the Accused Products in the United States, including within this district,
and/or imports the Accused Products into the United States.
38. On inIormation and belieI, DeIendants were aware oI ResMed`s
products that practice the patents identiIied in this Complaint. On inIormation and
belieI, because DeIendants were aware oI ResMed`s products, DeIendants were also
aware oI ResMed patents as a result oI patent marking, including the marking on
ResMed`s website. On inIormation and belieI, DeIendants` acts oI inIringement oI
the patents identiIied below have occurred with knowledge oI ResMed`s rights in its
patents or with willIul blindness thereto.
FIRST CLAIM FOR RELIEF
BMC`S INFRINGEMENT OF U.S. PATENT NO. 7,159,587
39. The allegations oI Paragraphs 1-38 are incorporated herein by
reIerence.
40. BMC has directly inIringed the claims oI the `587 patent, literally
and/or under the doctrine oI equivalents, by using, oIIering to sell, and/or selling
within the United States, and/or importing into the United States, the Accused Nasal
Masks and the Accused Nasal Pillows.
41. ResMed is well-known in the industry Ior making and selling SDB
products and ResMed is well-known in the industry to be an innovator. ResMed
also marks its products with its patents. ThereIore, on inIormation and belieI, BMC
either must have known about the `587 patent or must have been willIully blind to it
at the time they engaged in their inIringing activities and, in any event, was aware oI
the `587 patent at least as early as the service date oI this complaint.
42. On inIormation and belieI, BMC has induced and continues to induce
inIringement oI the `587 patent by actively encouraging customers and others to

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import, sell and/or use the Accused Nasal Masks and the Accused Nasal Pillows in
the United States with knowledge that such import, sale or use would inIringe the
`587 patent. On inIormation and belieI, those customers and others in Iact inIringed
the `587 patent by importing, selling and/or using the Accused Nasal Masks and the
Accused Nasal Pillows in the United States.
43. As a result oI BMC`s inIringement oI the `587 patent, ResMed has
suIIered and will continue to suIIer damage. ResMed is entitled to recover Irom
BMC the damages adequate to compensate Ior such inIringement, which have yet to
be determined.
44. BMC`s acts oI inIringement have caused and will continue to cause
irreparable harm to ResMed unless and until enjoined by this Court.
SECOND CLAIM FOR RELIEF
DECLARATORY 1UDGMENT OF BMC`S INFRINGEMENT OF U.S.
PATENT NO. 7,159,587
reIerence.
46. A substantial controversy exists between BMC and ResMed regarding
the Accused Nasal Masks which, when imported into the United States, sold,
oIIered Ior sale, or used within the United States, would inIringe literally, and/or
under the doctrine oI equivalents, the `587 patent.
47. On inIormation and belieI, BMC has taken active steps to promote the
Accused Nasal Masks in the United States, including in this jurisdiction, in
preparation Ior actual sales. For example, BMC has created product marketing
materials and a website, accessible in the United States, including within this
jurisdiction, regarding the Accused Nasal Masks. Moreover, BMC has actively
promoted the product in the United States by displaying and marketing the Accused
Nasal Masks at trade shows, including at least one in March 2013 in Las Vegas, NV.

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48. The controversy is oI suIIicient immediacy and reality to warrant the
issuance oI declaratory judgment.
49. On inIormation and belieI, BMC will use at least its established
distribution network in the United States, which includes 3B, to import and sell the
Accused Nasal Masks. As such, BMC`s actions would induce inIringement oI the
`587 patent by actively encouraging customers and others to import, sell and/or use
the Accused Nasal Masks in the United States with knowledge that such import, sale
or use would inIringe the `587 patent. On inIormation and belieI, those customers
and others would in Iact inIringe the `587 patent by importing, selling and/or using
the Accused Nasal Masks in the United States.
50. II BMC is permitted to inIringe the `587 patent, ResMed will suIIer
damage. ResMed would be entitled to recover Irom BMC the damages adequate to
compensate Ior such inIringement, which have yet to be determined.
51. BMC`s acts oI inIringement will cause irreparable harm to ResMed
unless and until enjoined by this Court.
THIRD CLAIM FOR RELIEF
reIerence.
Masks and the Accused Nasal Pillows.

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be determined.
FOURTH CLAIM FOR RELIEF
DECLARATORY 1UDGMENT OF BMC`S INFRINGEMENT OF U.S.
reIerence.
59. A substantial controversy exists between BMC and ResMed regarding
the Accused Nasal Masks which, when imported into the United States, sold,
oIIered Ior sale, or used within the United States, would inIringe literally, and/or
under the doctrine oI equivalents, the `772 patent.
60. On inIormation and belieI, BMC has taken active steps to promote the
preparation Ior actual sales. For example, BMC has created product marketing

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jurisdiction, regarding the Accused Nasal Masks. Moreover, BMC has actively
62. On inIormation and belieI, BMC will use at least its established
distribution network in the United States, which includes 3B, to import and sell the
Accused Nasal Masks. As such, BMC`s actions would induce inIringement oI the
`772 patent by actively encouraging customers and others to import, sell and/or use
the Accused Nasal Masks in the United States with knowledge that such import, sale
or use would inIringe the `772 patent. On inIormation and belieI, those customers
and others would in Iact inIringe the `772 patent by importing, selling and/or using
the Accused Nasal Masks in the United States.
63. II BMC is permitted to inIringe the `772 patent, ResMed will suIIer
damage. ResMed would be entitled to recover Irom BMC the damages adequate to
64. BMC`s acts oI inIringement will cause irreparable harm to ResMed
unless and until enjoined by this Court.
FIFTH CLAIM FOR RELIEF
reIerence.
Pillows.

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import, sell and/or use the Accused Nasal Pillows in the United States with
knowledge that such import, sale or use would inIringe the `060 patent. On
inIormation and belieI, those customers and others in Iact inIringed the `060 patent
by importing, selling and/or using the Accused Nasal Pillows in the United States.
be determined.
SIXTH CLAIM FOR RELIEF
reIerence.
Pillows.

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be determined.
SEVENTH CLAIM FOR RELIEF
reIerence.
Pillows.

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be determined.
EIGHTH CLAIM FOR RELIEF
reIerence.
within the United States, and/or importing into the United States, at least the
Accused Machines.

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import, sell and/or use the Accused Machines in the United States with knowledge
that such import, sale or use would inIringe the `398 patent. On inIormation and
belieI, those customers and others in Iact inIringed the `398 patent by importing,
selling and/or using the Accused Machines in the United States.
be determined.
NINTH CLAIM FOR RELIEF
3B`S INFRINGEMENT OF U.S. PATENT NO. 7,159,587
reIerence.
90. 3B has directly inIringed the claims oI the `587 patent, literally and/or
under the doctrine oI equivalents, by using, oIIering to sell, and/or selling within the
United States, and/or importing into the United States, the Accused Nasal Masks
and the Accused Nasal Pillows.
also marks its products with its patents. ThereIore, on inIormation and belieI, 3B
92. On inIormation and belieI, 3B has induced and continues to induce

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93. As a result oI 3B`s inIringement oI the `587 patent, ResMed has
suIIered and will continue to suIIer damage. ResMed is entitled to recover Irom 3B
the damages adequate to compensate Ior such inIringement, which have yet to be
determined.
94. 3B`s acts oI inIringement have caused and will continue to cause
TENTH CLAIM FOR RELIEF
DECLARATORY 1UDGMENT OF 3B`S INFRINGEMENT OF U.S.
reIerence.
96. A substantial controversy exists between 3B and ResMed regarding the
Accused Nasal Masks which, when imported into the United States, sold, oIIered Ior
sale, or used within the United States would inIringe literally, and/or under the
doctrine oI equivalents, the `587 patent.
97. On inIormation and belieI, 3B has taken active steps to promote the
preparation Ior actual sales. For example, 3B has created product marketing
jurisdiction, regarding the Accused Nasal Masks. Moreover, 3B has actively

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99. On inIormation and belieI, 3B will use at least its established
distribution network in the United States to import and sell the Accused Nasal
Masks. As such, 3B`s actions would induce inIringement oI the `587 patent by
actively encouraging customers and others to import, sell and/or use the Accused
Nasal Masks in the United States with knowledge that such import, sale or use
would inIringe the `587 patent. On inIormation and belieI, those customers and
others would in Iact inIringed the `587 patent by importing, selling and/or using the
Accused Nasal Masks in the United States.
100. II 3B is permitted to inIringe the `587 patent, ResMed will suIIer
damage. ResMed would be entitled to recover Irom 3B the damages adequate to
101. 3B`s acts oI inIringement will cause irreparable harm to ResMed unless
and until enjoined by this Court.
ELEVENTH CLAIM FOR RELIEF
reIerence.
United States, and/or importing into the United States, the Accused Nasal Masks
and the Accused Nasal Pillows.

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determined.
TWELFTH CLAIM FOR RELIEF
DECLARATORY 1UDGMENT OF 3B`S INFRINGEMENT OF U.S.
reIerence.
109. A substantial controversy exists between 3B and ResMed regarding the
Accused Nasal Masks which, when imported into the United States, sold, oIIered Ior
sale, or used within the United States would inIringe literally, and/or under the
doctrine oI equivalents, the `772 patent.
110. On inIormation and belieI, 3B has taken active steps to promote the
preparation Ior actual sales. For example, 3B has created product marketing
jurisdiction, regarding the Accused Nasal Masks. Moreover, 3B has actively

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112. On inIormation and belieI, 3B will use at least its established
distribution network in the United States to import and sell the Accused Nasal
Masks. As such, 3B`s actions would induce inIringement oI the `772 patent by
actively encouraging customers and others to import, sell and/or use the Accused
Nasal Masks in the United States with knowledge that such import, sale or use
would inIringe the `772 patent. On inIormation and belieI, those customers and
others would in Iact inIringed the `772 patent by importing, selling and/or using the
Accused Nasal Masks in the United States.
113. II 3B is permitted to inIringe the `772 patent, ResMed will suIIer
damage. ResMed would be entitled to recover Irom 3B the damages adequate to
114. 3B`s acts oI inIringement will cause irreparable harm to ResMed unless
and until enjoined by this Court.
THIRTEENTH CLAIM FOR RELIEF
reIerence.
United States, and/or importing into the United States, the Accused Nasal Pillows.

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determined.
FOURTEENTH CLAIM FOR RELIEF
reIerence.

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determined.
FIFTEENTH CLAIM FOR RELIEF
reIerence.

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determined.
SIXTEENTH CLAIM FOR RELIEF
reIerence.
United States, and/or importing into the United States, at least the Accused
Machines.
import, sell and/or use the Accused Machines in the United States with knowledge
that such import, sale or use would inIringe the `398 patent. On inIormation and

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belieI, those customers and others in Iact inIringed the `398 patent by importing,
selling and/or using the Accused Machines in the United States.
determined. 3B`s acts oI inIringement have caused and will continue to cause
PRAYER FOR RELIEF
WHEREFORE, ResMed prays that this Court enters judgment and provides
relieI as Iollows:
(a) That BMC has directly inIringed the Patents-in-Suit.
(b) That BMC has induced inIringement oI the Patents-in-Suit;
(c) A declaration that BMC`s importation, use, sale, or oIIer Ior sale oI the
Accused Nasal Masks inIringes and would inIringe the `587 Patent and the `772
Patent.
(d) That BMC, and its oIIicers, agents, servants, employees, and those in
active concert or participation with them directly or indirectly, be enjoined Irom
inIringing the Patents-in-Suit;
(e) That BMC pay to ResMed the damages resulting Irom BMC`s
inIringement oI the Patents-in-Suit, together with interest and costs, and all other
damages permitted by 35 U.S.C. 284;
(I) That BMC be ordered to account Ior additional damages Ior any and all
periods oI inIringement not included in the damages awarded by the Court or jury,
including speciIically any time periods between any order or verdict awarding
damages and entry oI Iinal judgment;
(g) That 3B has directly inIringed the Patents-in-Suit.
(h) That 3B has induced inIringement oI the Patents-in-Suit;

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(i) A declaration that 3B`s importation, use, sale, or oIIer Ior sale oI the
Accused Nasal Masks inIringes and would inIringe the `587 Patent and the `772
Patent.
(j) That 3B, and its oIIicers, agents, servants, employees, and those in
active concert or participation with them directly or indirectly, be enjoined Irom
inIringing the Patents-in-Suit;
(k) That 3B pay to ResMed the damages resulting Irom BMC`s
inIringement oI the Patents-in-Suit, together with interest and costs, and all other
damages permitted by 35 U.S.C. 284;
(l) That 3B be ordered to account Ior additional damages Ior any and all
periods oI inIringement not included in the damages awarded by the Court or jury,
including speciIically any time periods between any order or verdict awarding
damages and entry oI Iinal judgment; and
(m) That ResMed be awarded such other equitable or legal relieI as this
Court deems just and proper under the circumstances.

DEMAND FOR 1URY TRIAL
138. Pursuant to Federal Rule oI Civil Procedure 38, ResMed demands a
jury trial on all issues so triable.

Dated: May 29, 2013 FISH & RICHARDSON P.C.

By:

/s/ 5oger $ 'enning
Roger A. Denning

Attorneys Ior PlaintiIIs RESMED INC.,
RESMED CORP, and RESMED LTD

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