Jockeying for Position in a Sleep Apnea Patent Lawsuit


headgearSeveral months ago, respiratory health device developer ResMed Inc. filed multiple legal actions against Fisher & Paykel Healthcare. ResMed is alleging that multiple Fisher & Paykel products infringe upon its patents. ResMed filed actions with the U.S. International Trade Commission(ITC) and the U.S. District Court for the Southern District of California (S.D. Cal.), as well as courts in Germany and New Zealand.

ResMed argues that Fisher & Paykel is infringing upon patents it holds related to modular mask systems, headgear design, and cushion design for masks for sleep apnea patients. ResMed attempted to assert its rights on four particular patents in its portfolio.

These patents are:

  • U.S. Patent No. 8944061, which is titled Cushion to Frame Assembly Mechanism. It protects a mask assembly for treatment of sleep disordered breathing by delivering a flow of pressurized gas to a patient including a cushion forming a seal around a patient’s mouth and nose, a frame molded to the cushion and a skeleton frame removably attached to the frame.
  • U.S. Patent No. 8950404, titled Headgear for Masks. It claims a headgear system for holding a respiratory mask in position on a face of a patient to enhance a mask seal with the patient’s face. The innovative configuration increases the ease of use and lessens the tendency of producing facial marks after wear.
  • U.S. Patent No. 9027556, issued under the title Mask System. It protects a mask system for delivery of a supply of gas at positive pressure to a patient for medical treatment. This invention is intended to enhance the efficacy of treatment for sleep disordered breathing and the modular design allows for a customizable mask.
  • U.S. Patent No. 9381316, entitled Interchangeable Mask Assembly. It discloses an interchangeable mask system for delivering breathable gas to a patient and having multiple cushion components interchangeably interfacing with a common frame to optimize both fit and comfort.

The lawsuit filed by ResMed notes multiple aspects of Fisher & Paykel’s sleep apnea treatment devices which infringe upon its patents-in-suit. The RollFit seal frame utilized by the Simplus face mask, for example, infringes the ‘061 patent by providing a seal for the delivery of a flow of pressurized gas to a mask wearer using a cushion which is more flexible than the mask’s frame. ErgoForm headgear technology marketed by Fisher & Paykel infringes on the ‘404 patent by providing a plurality of straps which enhance a mask’s seal when worn on the face.

Interestingly, two days after ResMed filed its infringement suit, it filed a notice of voluntary dismissal without prejudice, effectively ending its suit. ResMed’s counsel noted that it will argue infringement through counterclaims to a lawsuit filed by Fisher & Paykel in S.D. Cal. on the same day as ResMed’s infringement suit. This decision was made to “simplify the procedural structure,” the motion reads.

The patents-in-suit in Fisher & Paykel’s infringement action include:

  • U.S. Patent No. 8443807, which is titled Breathing Assistance Apparatus. It protects a patient interface having a mask body with two nasal pillows to form a seal against a nare, or nostril, as well as a headgear assembly with two side straps, a top strap and a back strap.
  • U.S. Patent No. 8479741, same title as above. It also claims a patient interface with a mask body made of a substantially flexible plastic and having nasal pillows which are cylindrical and angled toward each other.
  • U.S. Patent No. 8186345, titled Apparatus for Supplying Gases to a Patient. The apparatus in this claims includes a gases supply, a delivery conduit with a heater wire and a controller which applies power to the heater wire. It provides higher reliability for temperature control of gases delivered to a patient with sleep apnea.
    U.S. Patent No. 8453641, entitled Apparatus for Measuring Properties of Gases Supplied to a Patient. The apparatus claimed here has an electrical circuit in communication with a delivery conduit which provides feedback to a controller when properties of gases vary.
  • U.S. Patent No. 8550072, which is titled Apparatus for Delivering Humidified Gases. It claims an apparatus having a heater base, a pressurized gases outlet in fluid connection with an inlet of a water chamber, a humidified gases return, and a blower for generating a supply of pressurized gases.


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