The claim from BMC Medical that it has won approval of a dismissal motion of the ResMed appeal is the latest twist in the ongoing sleep device patent scrap between the two firms.

“ResMed built its market leadership by investing in superior technology for sleep-disordered breathing therapy. The proprietary technology in our flow generators and humidifiers makes them comfortable and user-friendly, and patients should be sure to get ResMed’s high-quality complete solutions to enjoy the health benefits of successful CPAP treatment. We will continue to defend our proprietary technology by enforcing our patents against those who unfairly copy our products,” ResMed General Counsel David Pendarvis said in a press release.

The BMC cross-appeal of the ITC’s orders related to ResMed's masks used with CPAP products. Just last month the commission "remanded" the case to itself in order to determine “whether ResMed’s activities and investments in the U.S. make it a 'domestic industry,'” according to a BMC press release.
BMC took note of ITC's recognition of a "key recent decision of the Federal Court" that “would appear to stand as an obstacle to ResMed’s proof of the existence of a domestic industry related to the mask patents,” and that the agency planned to “suspend its remedial orders, which are directed to the mask patents, as it considers the issue."

ResMed fired back. Last week it filed against its competitor, alleging "both of BMC's flow generator products – the RESmart and the Luna – infringe two claims of ResMed's U.S. Patent No. RE44,453 relating to a design for a flow generator and humidifier that reduces the risk that water in the humidifier will spill back into the flow generator when tipped."

The filing also noted that the U.S. Patent Office "has already rejected challenges by BMC and 3B to the asserted ResMed claims from that patent and affirmed that they are valid," adding that the office's decision was "final."

The company is also planning to escalate its claims against BMC to include three additional patents involving the Luna and ReSmart. It "will be asking the ITC to stop BMC and 3B from importing the products to the U.S.," it said.

BMC's announcement also took note of the fact that the German Federal Patent Court had "accepted all requests from BMC and nullified the German part of a European patent relating to a CPAP system with a detachable water tank in the attached scope,."

Earlier this month ResMed and BMC settled the German disputes, according to the statement.

In 2015, 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.

The 1st District Court of Munich lifted a preliminary injunction against BMC’s CPAP machine during the hearing and issued a judgement in favor of BMC, the company said.

The court also ruled to suspend parallel patent infringement proceedings until a decision is made in the invalidation proceedings, according to the company.

In December 2014 ITC documents show that a mixed decision gave victories to both sides. The commission ruled at that time that nine of BMC’s products each violated at least one of ResMed’s patents and that certain of ResMed’s patents were invalid.

“We are pleased the court has validated ResMed’s intellectual property rights protecting those valuable innovations for the benefit of patients," Pendarvis said at the time, in a statement.

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