Case 3:16-cv-02068-DMS-WVG Document 1 Filed 08/16/16 PageID.1 Page 1 of 181
`
`
`Stephen C. Jensen (SBN 149,894)
`steve.jensen@knobbe.com
`Joseph F. Jennings (SBN 145,920)
`joe.jennings@knobbe.com
`Sheila N. Swaroop (SBN 203,476)
`sheila.swaroop@knobbe.com
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`Telephone: (949) 760-0404
`Facsimile: (949) 760-9502
`
`Attorneys for Plaintiff
`FISHER & PAYKEL HEALTHCARE LIMITED
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`
`Case No.
`
`
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`DEMAND FOR JURY TRIAL
`
`
`))))))))))))))
`
`FISHER & PAYKEL
`HEALTHCARE LIMITED, a New
`Zealand corporation
`
`
`Plaintiff,
`
`v.
`RESMED CORP., a Minnesota
`corporation,
`
`Defendant.
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`COMPLAINT
`
`'16
`
`CV2068
`
`WVG
`
`GPC
`
`

`

`Case 3:16-cv-02068-DMS-WVG Document 1 Filed 08/16/16 PageID.2 Page 2 of 181
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`Plaintiff Fisher & Paykel Healthcare Limited (“Plaintiff” or “Fisher &
`Paykel Healthcare”) hereby complains of Defendant ResMed Corp.
`(“Defendant” or “ResMed”) and alleges as follows:
`I. THE PARTIES
`1.
`Plaintiff Fisher & Paykel Healthcare Limited is a New Zealand
`corporation having a principal place of business at 15 Maurice Paykel Place,
`East Tamaki, Auckland 2013, PO Box 14 348, Panmure, Auckland, New
`Zealand.
`2.
`Upon information and belief, Defendant ResMed Corp. is a
`corporation organized under the laws of the state of Minnesota with its principal
`place of business in this district at 9001 Spectrum Center Boulevard, San Diego,
`California.
`
`II. JURISDICTION AND VENUE
`3.
`Fisher & Paykel Healthcare repeats, realleges, and incorporates by
`reference the allegations set forth in Paragraphs 1-2 of this Complaint.
`4.
`Fisher & Paykel Healthcare Inc. is a California corporation having
`a principal place of business in Irvine, CA.
`5. With the authorization of Fisher & Paykel Healthcare Limited,
`Fisher & Paykel Healthcare Inc. sells in the United States products covered by
`one or more of the patents asserted herein.
`6.
`This is a civil action for patent infringement arising under the
`patent laws of the United States, 35 U.S.C. §§ 100, et seq., more particularly, 35
`U.S.C. §§ 271 and 281.
`7.
`This Court has subject matter jurisdiction pursuant to 28 U.S.C.
`§§ 1331 and 1338(a).
`8.
`ResMed resides in California and is subject to personal jurisdiction
`in California, and has committed the acts complained of in this Judicial District.
`
`
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`9.
`Venue is proper in this Judicial District pursuant to 28 U.S.C.
`§§ 1391(b), (c), and 1400(b).
`III. THE PATENTS-IN-SUIT
`10. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 8,443,807 entitled “Breathing Assistance Apparatus” (“the ’807
`patent”), which the United States Patent and Trademark Office lawfully and
`duly issued on May 21, 2013. A true and correct copy of the ’807 patent is
`attached hereto as Exhibit 1.
`11. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 8,479,741 entitled “Breathing Assistance Apparatus” (“the ’741
`patent”), which the United States Patent and Trademark Office lawfully and
`duly issued on July 9, 2013. A true and correct copy of the ’741 patent is
`attached hereto as Exhibit 2.
`12. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 8,186,345 entitled “Apparatus for Supplying Gases to a Patient”
`(“the ’345 patent”), which the United States Patent and Trademark Office
`lawfully and duly issued on May 29, 2012. A true and correct copy of the ’345
`patent is attached hereto as Exhibit 3.
`13. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 8,453,641 entitled “Apparatus For Measuring Properties of Gases
`Supplied to a Patient” (“the ’641 patent”), which the United States Patent and
`Trademark Office lawfully and duly issued on June 4, 2013. A true and correct
`copy of the ’641 patent is attached hereto as Exhibit 4.
`14. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 9,265,902 entitled “Apparatus For Measuring Properties of Gases
`Supplied to a Patient” (“the ’902 patent”), which the United States Patent and
`Trademark Office lawfully and duly issued on February 23, 2016. A true and
`correct copy of the ’902 patent is attached hereto as Exhibit 5.
`
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`15. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 8,550,072 entitled “Apparatus for Delivering Humidified Gases”
`(“the ’072 patent”), which the United States Patent and Trademark Office
`lawfully and duly issued on October 8, 2013. A true and correct copy of the
`’072 patent is attached hereto as Exhibit 6.
`16. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 8,091,547 entitled “Apparatus for Delivering Humidified Gases”
`(“the ’547 patent”), which the United States Patent and Trademark Office
`lawfully and duly issued on January 10, 2012. A true and correct copy of the
`’547 patent is attached hereto as Exhibit 7.
`17. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 7,111,624 entitled “Apparatus for Delivering Humidified Gases”
`(“the ’624 patent”), which the United States Patent and Trademark Office
`lawfully and duly issued on September 26, 2006. A true and correct copy of the
`’624 patent is attached hereto as Exhibit 8.
`18. Fisher & Paykel Healthcare Limited is the owner by assignment of
`U.S. Patent 6,398,197 entitled “Water Chamber” (“the ’197 patent”), which the
`United States Patent and Trademark Office lawfully and duly issued on June 4,
`2002. A true and correct copy of the ’197 patent is attached hereto as Exhibit 9.
`IV. DEFENDANTS’ ACTIVITIES
`19. Upon information and belief, ResMed has made, used, offered to
`sell, and/or sold within the United States, and/or has imported into the United
`States, products including at least Continuous Positive Airway Pressure
`(“CPAP”) machines such as ResMed’s AirSense 10 Series, including, without
`limitation, ResMed AirSense 10 AutoSet, Airsense 10 AutoSet for Her,
`AirSense 10 CPAP, and AirSense 10 Elite (collectively, “S10 CPAP”).
`20. Upon further information and belief, ResMed has made, used,
`offered to sell, and/or sold within the United States, and/or has imported into the
`
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`United States, products including at least the AirCurve 10 ASV, AirCurve 10 S,
`AirCurve 10 VAuto, and AirCurve 10 ST (collectively, “AirCurve 10”).
`21. Upon further information and belief, ResMed has made, used,
`offered to sell, and/or sold within the United States, and/or has imported into the
`United States, ClimateLineAir heated air tubing for use with at least the S10
`CPAP products.
`22. Upon further information and belief, ResMed has made, used,
`offered to sell, and/or sold within the United States, and/or has imported into the
`United States, nasal pillow masks, including the Swift FX and the Swift LT
`masks.
`
`V. CLAIMS FOR PATENT INFRINGEMENT
`FIRST CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,443,807)
`23. Fisher & Paykel Healthcare realleges and reincorporates the
`allegations set forth in paragraphs 1 through 22.
`24. Upon information and belief, ResMed products, including at least
`the Swift FX products, infringe at least Claims 1, 2, 4, 6, 8, 17, 20, and 21 of the
`’807 patent under at least 35 U.S.C. § 271(a), (b), and (c).
`25. Upon information and belief, ResMed has directly infringed one or
`more claims of the ’807 patent through manufacture use, sale, offer for sale,
`and/or importation into the United States of masks, including the Swift FX
`masks.
`26. For example, upon information and belief, the Swift FX mask
`includes all of the limitations of Claim 1 of the ‘807 patent. The Swift FX mask
`is a patient interface that includes a mask assembly with a mask body sized and
`shaped to leave the mouth of the user uncovered by the mask when in use. Two
`nasal pillows extend from the mask body, and in use these nasal pillows rest in a
`substantially sealed manner against the openings of the nasal cavity of the user.
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`There is a ring engaging the mask body, an elbow rotatably engaged with the
`ring comprising a plurality of vent holes, a tube or conduit extending from the
`elbow, and a headgear assembly having two side straps that pass down the
`cheeks to secure the mask body to a face of a user. The headgear assembly also
`includes a top strap with a buckle to facilitate length adjustment of the top strap
`and a back strap adjustably connected to at least the top strap or the two side
`straps. The two side straps are configured to connect and disconnect with the
`mask assembly while the elbow remains rotatably engaged with the ring and the
`ring remains engaged with the mask body. The mask assembly is configured to
`connect to the two side straps, and the top strap connects only with one or more
`of the side straps and the back strap.
`27. ResMed is aware of the ’807 patent, at least in part through written
`communications from Fisher & Paykel Healthcare on or about February 27,
`2015 notifying ResMed of its infringement of this patent.
`28. Upon information and belief, ResMed has actively induced others
`to infringe the ’807 patent by marketing and selling the above masks, knowing
`and intending that such masks would be used by customers and end users in a
`manner that infringes the ’807 patent. To that end, ResMed provides
`instructions and teachings to its customers and end users that such masks be
`used to infringe the ’807 patent. ResMed’s acts constitute infringement of the
`’807 patent in violation of 35 U.S.C. § 271(b).
`29.
` Upon information and belief, ResMed actively induces health-care
`service providers and users to directly infringe the asserted claims of the ’807
`patent. By way of example only, upon information and belief, ResMed actively
`induces direct infringement of the ’807 patent by providing directions,
`demonstrations, guides, manuals, training for use, and/or other materials
`necessary for the use, refurbishing, and/or servicing of the Swift FX masks.
`
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`Upon information and belief, ResMed knew or should have known that these
`activities would cause direct infringement.
`30. Upon information and belief, ResMed’s acts constitute contributory
`infringement of the ‘807 patent in violation of 35 U.S.C. § 271(c). Upon
`information and belief, ResMed contributorily infringes because, among other
`things, ResMed offers to sell and/or sells within the United States, and/or
`imports into the United States, components of the Swift FX masks that
`constitute material parts of the invention of the asserted claims of the ’807
`patent, are not staple articles or commodities of commerce suitable for
`substantial non-infringing use, and are known by ResMed to be especially made
`or especially adapted for use in an infringement of the ’807 patent.
`
`31. Upon information and belief, ResMed’s infringement of the ’807
`patent has been, and continues to be, willful, deliberate, and intentional by
`continuing its acts of infringement after becoming aware of the ’807 patent and
`its infringement thereof, thus acting in reckless disregard of Fisher & Paykel
`Healthcare’s patent rights.
`32.
` As a consequence of ResMed’s infringement of the ’807 patent,
`Fisher & Paykel Healthcare has suffered and will continue to suffer irreparable
`harm and injury, including monetary damages in an amount to be determined at
`trial.
`
`33.
` Upon information and belief, unless enjoined, ResMed, and/or
`others acting on behalf of ResMed, will continue their infringing acts, thereby
`causing additional irreparable injury to Fisher & Paykel Healthcare for which
`there is no adequate remedy at law.
`SECOND CLAIM FOR RELIEF
` (Infringement of U.S. Patent No. 8,479,741)
`34. Fisher & Paykel Healthcare realleges and reincorporates the
`allegations set forth in paragraphs 1 through 33.
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`35. Upon information and belief, ResMed products, including at least
`the Swift LT masks, infringe at least Claims 1-3, 16, 17, 34, and 35 of the ’741
`patent under 35 U.S.C. § 271(a), (b), or (c).
`36. Upon information and belief, ResMed has directly infringed one or
`more claims of the ’741 patent through manufacture use, sale, offer for sale,
`and/or importation into the United States of the Swift LT masks.
`37. For example, upon information and belief, the Swift LT mask
`includes all of the limitations of Claim 1 of the ’741 patent. The Swift LT mask
`is a patient interface that includes a mask body comprising a substantially
`flexible plastics material and having two nasal pillows angled toward one
`another. Each of the nasal pillows has a generally conical portion, a generally
`cylindrical portion, and an outlet opening. The mask body also includes an inlet
`opening that is spaced apart from the outlet openings on the nasal pillows and
`that is within a generally tubular portion of the mask body.
`38. Upon information and belief, the Swift LT mask also includes a
`mask base having a plastics material that is less flexible than the plastics
`material of the mask body. The mask base has a housing with a through
`passage, and a proximal portion of the through passage is surrounded by a
`recess. The recess receives the generally tubular portion of the mask body that
`defines the mask body inlet opening. Two side arms are removably connected
`to the mask base, and each side arm is three-dimensionally molded and has a
`varying cross-sectional thickness.
`39. Upon information and belief, the Swift LT mask includes headgear
`with two side straps of a composite foam material. Each side arm overlaps with
`and is secured to one of the side straps, and the side strap extends only partially
`along the side arm to which it is secured.
`/ / /
`/ / /
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`40. ResMed is aware of the ’741 patent, at least in part through written
`communications from Fisher & Paykel Healthcare on or about February 27,
`2015 notifying ResMed of its infringement of this patent.
`41. Upon information and belief, ResMed has actively induced others
`to infringe the ’741 patent. ResMed’s acts constitute infringement of the
`’741 patent in violation of 35 U.S.C. § 271(b).
`42.
` Upon information and belief, ResMed actively induces health-care
`service providers and users to directly infringe the asserted claims of the ’741
`patent. By way of example only, upon information and belief, ResMed actively
`induces direct infringement of the ’741 patent by providing directions,
`demonstrations, guides, manuals, training for use, and/or other materials
`necessary for the use, refurbishing, and/or servicing of the Swift LT masks.
`Upon information and belief, ResMed knew or should have known that these
`activities would cause direct infringement.
`43. Upon information and belief, ResMed’s acts constitute contributory
`infringement of the ’741 patent in violation of 35 U.S.C. § 271(c). Upon
`information and belief, ResMed contributorily infringes because, among other
`things, ResMed offers to sell and/or sells within the United States, and/or
`imports into the United States, components of the Swift LT masks that
`constitute material parts of the invention of the asserted claims of the ’741
`patent, are not staple articles or commodities of commerce suitable for
`substantial non-infringing use, and are known by ResMed to be especially made
`or especially adapted for use in an infringement of the ’741 patent.
`44.
` Upon further information and belief, such components are used by
`ResMed in connection with the refurbishing, servicing and/or use of infringing
`Swift LT masks in the United States, thereby constituting direct infringement of
`the asserted claims of the ’741 patent.
`/ / /
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`45.
` Upon information and belief, ResMed’s infringement of the ’741
`patent has been, and continues to be, willful, deliberate, and intentional by
`continuing its acts of infringement after becoming aware of the ’741 patent and
`its infringement thereof, thus acting in reckless disregard of Fisher & Paykel
`Healthcare’s patent rights.
`46.
` As a consequence of ResMed’s infringement of the ’741 patent,
`Fisher & Paykel Healthcare has suffered and will continue to suffer irreparable
`harm and injury, including monetary damages in an amount to be determined at
`trial.
`
`47.
` Upon information and belief, unless enjoined, ResMed, and/or
`others acting on behalf of ResMed, will continue their infringing acts, thereby
`causing additional irreparable injury to Fisher & Paykel Healthcare for which
`there is no adequate remedy at law.
`THIRD CLAIM FOR RELIEF
` (Infringement of U.S. Patent No. 8,186,345)
`48. Fisher & Paykel Healthcare realleges and reincorporates the
`allegations set forth in paragraphs 1 through 47.
`49. Upon information and belief, ResMed products, including at least
`the S10 CPAP, AirCurve 10, and ClimateLineAir products, infringe at least
`Claims 1 and 3 of the ’345 patent under 35 U.S.C. § 271(a), (b), or (c).
`50. Upon information and belief, ResMed has directly infringed the
`asserted claims of the ’345 patent through manufacture use, sale, offer for sale,
`and/or importation into the United States of the S10 CPAP, AirCurve 10, and
`ClimateLineAir products.
`51. For example, upon information and belief, the AirSense 10 with
`ClimateLine Air tubing includes all of the limitations of Claim 1 of the ‘345
`patent. Upon information and belief, the AirSense 10 with Climate Line Air
`tubing is an apparatus for supplying gases to a patient. It includes a gases
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`supply and a tube with a heater wire for heating the conduit. The heater wire is
`located around the outside of the tube. The circuitry of the ClimateLine Air
`tube includes a thermistor, which has a characteristic impedance. The user
`manual for the AirSense 10 indicates that this device has a controller for
`controlling the heating of the heater wire. The controller can automatically
`identify the conduit attached by using the resistance from the thermistor at room
`temperature to determine the type of delivery conduit attached.
`52. ResMed is aware of the ’345 patent, at least in part through written
`communications from Fisher & Paykel Healthcare on or about February 22,
`2016 notifying ResMed of its infringement of this patent.
`53. Upon information and belief, ResMed has actively induced others
`to infringe the ’345 patent. ResMed’s acts constitute infringement of the
`’345 patent in violation of 35 U.S.C. § 271(b).
`54. Upon information and belief, ResMed actively induces health-care
`service providers and users to directly infringe the asserted claims of the ’345
`patent. By way of example only, upon information and belief, ResMed actively
`induces direct infringement of the ’345 patent by providing directions,
`demonstrations, guides, manuals, training for use, and/or other materials
`necessary for the use, refurbishing, and/or servicing of the S10 CPAP,
`AirCurve 10, and ClimateLineAir products.
`55. Upon information and belief, ResMed knew or should have known
`that these activities would cause direct infringement.
`56. Upon information and belief, ResMed’s acts constitute contributory
`infringement of the ’345 patent in violation of 35 U.S.C. § 271(c). Upon
`information and belief, ResMed contributorily infringes because, among other
`things, ResMed offers to sell and/or sells within the United States, and/or
`imports into the United States, components of the S10 CPAP, AirCurve 10, and
`ClimateLineAir products that constitute material parts of the invention of the
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`asserted claims of the ’345 patent, are not staple articles or commodities of
`commerce suitable for substantial non-infringing use, and are known by
`ResMed to be especially made or especially adapted for use in an infringement
`of the ’345 patent.
`57.
` Upon further information and belief, such components are used by
`ResMed in connection with the refurbishing, servicing and/or use of infringing
`S10 CPAP, AirCurve 10, and ClimateLineAir products in the United States,
`thereby constituting direct infringement of the asserted claims of the ’345
`patent.
`58.
` Upon information and belief, ResMed’s infringement of the ’345
`patent has been, and continues to be, willful, deliberate, and intentional by
`continuing its acts of infringement after becoming aware of the ’345 patent and
`its infringement thereof, thus acting in reckless disregard of Fisher & Paykel
`Healthcare’s patent rights.
`59.
` As a consequence of ResMed’s patent infringement of the ’345
`patent, Fisher & Paykel Healthcare has suffered and will continue to suffer
`irreparable harm and injury, including monetary damages in an amount to be
`determined at trial.
`60.
` Upon information and belief, unless enjoined, ResMed, and/or
`others acting on behalf of ResMed, will continue their infringing acts, thereby
`causing additional irreparable injury to Fisher & Paykel Healthcare for which
`there is no adequate remedy at law.
`FOURTH CLAIM FOR RELIEF
` (Infringement of U.S. Patent No. 8,453,641)
`61. Fisher & Paykel Healthcare realleges and reincorporates the
`allegations set forth in paragraphs 1 through 60.
`/ / /
`/ / /
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`62. Upon information and belief, ResMed products, including at least
`the S10 CPAP, AirCurve 10, and ClimateLineAir products, infringe at least
`Claims 1 5, and 6 of the ’641 patent under 35 U.S.C. § 271(a), (b), or (c).
`63. Upon information and belief, ResMed has directly infringed the
`asserted claims of the ’641 patent through manufacture use, sale, offer for sale,
`and/or importation into the United States of the S10 CPAP, AirCurve 10, and
`ClimateLineAir products.
`64. For example, upon information and belief, the AirSense 10 with
`ClimateLine Air tubing includes all of the limitations of Claim 1 of the ‘641
`patent. The AirSense 10 is an apparatus for measuring the properties of gases
`being supplied to a patient. It includes a gases supply and a tube that includes a
`heater wire for heating the tube. The heater wire is located around the outside
`of the tube. The tube has two ends, and the heater wire extends longitudinally
`along the tube from the first end to the second end of the tube. The heater wire
`forms part of the circuit of the AirSense 10 device and is measured by a
`controller to determine properties of the gases, including temperature and/or
`relative humidity. The electrical circuit has two portions, one that is located
`near the first end of the tube and the other that is located near the second end of
`the tube. The two portions of the electrical circuit are in electrical
`communication with each other through a thermistor that is electrically
`connected to the contacts at the gases supply end of the electrical circuit. The
`change in current from the thermistor is used to determine temperature of the
`gases as it varies.
`65. ResMed is aware of the ’641 patent, at least in part through written
`communications from Fisher & Paykel Healthcare on or about February 22,
`2016 notifying ResMed of its infringement of this patent.
`/ / /
`/ / /
`
`
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`COMPLAINT
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`Case 3:16-cv-02068-DMS-WVG Document 1 Filed 08/16/16 PageID.14 Page 14 of 181
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`66. Upon information and belief, ResMed has actively induced others
`to infringe the ’641 patent. ResMed’s acts constitute infringement of the
`’641 patent in violation of 35 U.S.C. § 271(b).
`67.
` Upon information and belief, ResMed actively induces health-care
`service providers and users to directly infringe the asserted claims of the ’641
`patent. By way of example only, upon information and belief, ResMed actively
`induces direct infringement of the ’641 patent by providing directions,
`demonstrations, guides, manuals, training for use, and/or other materials
`necessary for the use, refurbishing, and/or servicing of the S10 CPAP,
`AirCurve 10, and ClimateLineAir products.
`68. Upon information and belief, ResMed knew or should have known
`that these activities would cause direct infringement.
`69. Upon information and belief, ResMed’s acts constitute contributory
`infringement of the ’641 patent in violation of 35 U.S.C. § 271(c). Upon
`information and belief, ResMed contributorily infringes because, among other
`things, ResMed offers to sell and/or sells within the United States, and/or
`imports into the United States, components of the S10 CPAP, AirCurve 10, and
`ClimateLineAir products that constitute material parts of the invention of the
`asserted claims of the ’641 patent, are not staple articles or commodities of
`commerce suitable for substantial non-infringing use, and are known by
`ResMed to be especially made or especially adapted for use in an infringement
`of the ’641 patent.
`70.
` Upon further information and belief, such components are used by
`ResMed in connection with the refurbishing, servicing and/or use of infringing
`S10 CPAP, AirCurve 10, and ClimateLineAir products in the United States,
`thereby constituting direct infringement of the asserted claims of the ’641
`patent.
`/ / /
`
`
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`COMPLAINT
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`71.
` Upon information and belief, ResMed’s infringement of the ’641
`patent has been, and continues to be, willful, deliberate, and intentional by
`continuing its acts of infringement after becoming aware of the ’641 patent and
`its infringement thereof, thus acting in reckless disregard of Fisher & Paykel
`Healthcare’s patent rights.
`72.
` As a consequence of ResMed’s patent infringement of the ’641
`patent, Fisher & Paykel Healthcare has suffered and will continue to suffer
`irreparable harm and injury, including monetary damages in an amount to be
`determined at trial.
`73.
` Upon information and belief, unless enjoined, ResMed, and/or
`others acting on behalf of ResMed, will continue their infringing acts, thereby
`causing additional irreparable injury to Fisher & Paykel Healthcare for which
`there is no adequate remedy at law.
`FIFTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 9,265,902)
`74. Fisher & Paykel Healthcare realleges and reincorporates the
`allegations set forth in paragraphs 1 through 73.
`75. Upon information and belief, ResMed products, including at least
`the S10 CPAP, AirCurve 10, and ClimateLineAir products, infringe at least
`Claims 7, 11, and 12of the ’902 patent under 35 U.S.C. § 271(a), (b), or (c).
`76. Upon information and belief, ResMed has directly infringed the
`asserted claims of the ’902 patent through manufacture use, sale, offer for sale,
`and/or importation into the United States of the S10 CPAP, AirCurve 10, and
`ClimateLineAir products.
`77. For example, upon information and belief, the AirSense 10 with
`ClimateLine Air includes all of the limitations of Claim 7 of the ’902 patent.
`The AirSense 10 is configured to supply a stream of gases to a patient. It
`includes a gases supply, a tube configured to connect to the gases supply and to
`
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`COMPLAINT
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`Case 3:16-cv-02068-DMS-WVG Document 1 Filed 08/16/16 PageID.16 Page 16 of 181
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`deliver the stream of gases to the patient, and a heater wire extending through a
`length of the tube. An electrical circuit connected to the wire includes a
`thermistor, and current flows through the thermistor and wire to a controller.
`Based on the current, the controller can determine at least the temperature of the
`gases and can adjust for patient comfort or therapeutic setting. The thermistor is
`positioned within the stream of gases. An overmolding encloses part of the
`electrical circuit and extends into the middle of the tube.
`78. ResMed is aware of the ’902 patent, at least in part through written
`communications from Fisher & Paykel Healthcare on or about February 22,
`2016 notifying ResMed of its infringement of this patent.
`79. Upon information and belief, ResMed has actively induced others
`to infringe the ’902 patent. ResMed’s acts constitute infringement of the
`’902 patent in violation of 35 U.S.C. § 271(b).
`80.
` Upon information and belief, ResMed actively induces health-care
`service providers and users to directly infringe the asserted claims of the ’902
`patent. By way of example only, upon information and belief, ResMed actively
`induces direct infringement of the ’902 patent by providing directions,
`demonstrations, guides, manuals, training for use, and/or other materials
`necessary for the use, refurbishing, and/or servicing of the S10 CPAP,
`AirCurve 10, and ClimateLineAir products.
`81. Upon information and belief, ResMed knew or should have known
`that these activities would cause direct infringement.
`82. Upon information and belief, ResMed’s acts constitute contributory
`infringement of the ’902 patent in violation of 35 U.S.C. § 271(c). Upon
`information and belief, ResMed contributorily infringes because, among other
`things, ResMed offers to sell and/or sells within the United States, and/or
`imports into the United States, components of the S S10 CPAP, AirCurve 10,
`and ClimateLineAir products that constitute material parts of the invention of
`
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`COMPLAINT
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`the asserted claims of the ’902 patent, are not staple articles or commodities of
`commerce suitable for substantial non-infringing use, and are known by
`ResMed to be especially made or especially adapted for use in an infringement
`of the ’902 patent.
`83.
` Upon further information and belief, such components are used by
`ResMed in connection with the refurbishing, servicing and/or use of infringing
`S10 CPAP, AirCurve 10, and ClimateLineAir products in the United States,
`thereby constituting direct infringement of the asserted claims of the ’902
`patent.
`84.
` Upon information and belief, ResMed’s infringement of the ’902
`patent has been, and continues to be, willful, deliberate, and intentional by
`continuing its acts of infringement after becoming aware of the ’902 patent and
`its infringement thereof, thus acting in reckless disregard of Fisher & Paykel
`Healthcare’s patent rights.
`85.
` As a consequence of ResMed’s patent infringement of the ’902
`patent, Fisher & Paykel Healthcare has suffere