China’s BMC Medical, U.S. Distributor Earn ITC Scrutiny for CPAPs
The U.S. International Trade Commission again is investigating complaints that a Chinese device company and its American distributor are infringing patents related to ResMed’s sleep disorder products.
In the latest in an ongoing feud, ResMed is accusing BMC Medical and distributor 3B Medical of infringing the ’453, ’551, ’691 and ’860 patents related to products to combat sleep apnea. ResMed claims that two of BMC’s flow generator products — the RESmart and the Luna — infringe claims of these patents. ResMed filed its current complaint with the ITC last month.
As part of its complaint, ResMed is asking the ITC to stop BMC and 3B from importing and selling flow generators in the U.S.
The ITC says it will investigate whether BMC and 3B are in violation of section 337 of the Tariff Act of 1930, which relates to unfair practices in import trade. Despite the investigation, the ITC asserts that it hasn’t decided on the merits of the case, which will be assigned to one of the body’s administrative law judges. The judge will determine whether a violation has taken place — a decision the commission will then review.
ResMed filed a similar complaint with the ITC in 2013. In addition to the ITC complaint, ResMed has filed a lawsuit in the U.S. District Court for the Southern District of California. ResMed sued BMC in the same court in 2013 for patent infringement.
Both parties have claimed victories in the ongoing dispute. Last June, BMC announced it had won a patent dispute in Germany in a case involving a CPAP respiratory system machine with a detachable water tank. ResMed previously had won an injunction prohibiting BMC from offering, selling or distributing infringing mask products — including Willow and FeaLite nasal pillow masks — in that country.
Groups Fight Back
BMC had urged the ITC to reject ResMed’s request. “ResMed’s decision to burden the Commission and BMC/3B with serial litigation rather than efficiently asserting all of its allegations in a single investigation should not be rewarded.”
For its part, 3B accuses ResMed of monopolistic behavior, adding that it has filed an antitrust action in the U.S. District Court for the Middle District of Florida. In its complaint, 3B cites an instance in which a potential customer said, “‘ResMed will shut down anyone who gets near their business.’”
The Chinese company and its Florida distributor do have their backers. In comments to the ITC urging that it reject ResMed’s petition, one Florida-based durable medical goods supplier, Lifesavers Home Respiratory, says that 3B has helped it stay in business. Lifesavers has filed for Chapter 11, but is being helped by contracting with 3B.
“Specifically, pricing with 3B for an auto CPAP is $219 — the ResMed price is over $500,” the company notes in a filing with the ITC. Lifesavers contends that ResMed goes after doctors who refer Lifesavers. Further, it encourages doctors not to use homecare companies that refuse to sign a contract giving ResMed most of their businesses.