Case 3:16-cv-02068-DMS-WVG Document 7 Filed 09/07/16 PageID.189 Page 1 of 95
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`Roger A. Denning, SBN 228998, denning@fr.com
`Todd Miller, SBN 163200, miller@fr.com
`Frank Albert, SBN 247741, albert@fr.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, scherkenbach@fr.com
`Fish & Richardson P.C.
`One Marina Park Dr.
`Boston, MA 02210
`Phone: 617-542-5070 / Fax: 617-542-8906
`
`Christina Brown Marshall SBN 280552, brown-marshall@fr.com
`Fish & Richardson P.C.
`1180 Peachtree Street, 21st Floor
`Atlanta, GA 30309
`Phone: 404-724-5005 / Fax: 404-892-5002
`
`Attorneys for Plaintiffs
`
`
`
`Plaintiffs,
`
`
`v.
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`CASE NO: 16CV2068 GPC WVG
`
`
`ANSWER OF RESMED CORP
`TO COMPLAINT FOR PATENT
`INFRINGEMENT AND
`COUNTERCLAIMS
`
`JURY TRIAL DEMANDED
`
`
`
`FISHER & PAYKEL HEALTHCARE
`LIMITED, a New Zealand corporation
`
`
`
`
`RESMED CORP., a Minnesota corporation,
`
` Defendant.
`___________________________________
`
`RESMED INC., a Delaware Corporation,
`RESMED CORP, a Minnesota Corporation,
`and RESMED LTD, an Australian
`Corporation,
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`
`
`Counterclaimant,
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`v.
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`Case No. 16CV2068 GPC WVG
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`FISHER & PAYKEL HEALTHCARE
`CORPORATION LIMITED, a New Zealand
`Corporation, FISHER & PAYKEL
`HEALTHCARE LIMITED, a New Zealand
`Corporation, FISHER & PAYKEL
`HEALTHCARE INC., a California
`Corporation, and FISHER & PAYKEL
`HEALTHCARE DISTRIBUTION INC., a
`California Corporation,
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`Counterclaim-Defendants.
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`Defendant ResMed Corp (“ResMed Corp”) hereby files this Answer and
`Affirmative Defenses in response to the Complaint for Patent Infringement filed by
`Plaintiff Fisher & Paykel Healthcare Limited (“FPH”). In addition, ResMed Inc.,
`ResMed Corp, and ResMed Ltd (collectively, “ResMed”) file Counterclaims against
`Counterclaim-Defendants Fisher & Paykel Healthcare Corporation Limited, Fisher
`& Paykel Healthcare Limited, Fisher & Paykel Healthcare Inc., and Fisher & Paykel
`Healthcare Distribution Inc. (collectively, “F&P”) as follows:
`ResMed Corp denies all allegations not expressly admitted herein.
`
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`I. THE PARTIES
`1.
`On information and belief, ResMed Corp admits the allegations in
`paragraph 1 of the Complaint.
`2.
`ResMed Corp admits the allegations in paragraph 2 of the Complaint.
`
`
`II.
`JURISDICTION AND VENUE
`3.
`ResMed Corp incorporates by reference its responses to paragraphs 1-2
`as if repeated here verbatim.
`4.
`On information and belief, ResMed Corp admits the allegations in
`paragraph 4 of the Complaint.
`5.
`On information and belief, ResMed Corp admits the allegations in
`paragraph 5 of the Complaint.
`6.
`ResMed Corp admits that the Complaint alleges a claim for patent
`infringement arising under the Patent Laws of the United States. ResMed otherwise
`denies the allegations in paragraph 6 of the Complaint.
`7.
`ResMed Corp admits that this Court has subject matter jurisdiction
`pursuant to 28 U.S.C. §§ 1331 and 1338(a).
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`8.
`ResMed Corp admits that it is subject to personal jurisdiction in
`California. ResMed Corp otherwise denies the allegations in paragraph 8 of the
`Complaint.
`9.
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`ResMed Corp admits the allegations in paragraph 9 of the Complaint.
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`III. THE PATENTS IN SUIT
`10. ResMed Corp admits that U.S. Patent 8,443,807 (“the ’807 Patent”) is
`entitled “Breathing Assistance Apparatus.” ResMed Corp admits that the ’807
`Patent issued on May 21, 2013 and that a copy of the ’807 Patent is attached to the
`Complaint as Exhibit 1. ResMed Corp otherwise denies the allegations in paragraph
`10 of the Complaint.
`11. ResMed Corp admits that U.S. Patent 8,479,741 (“the ’741 Patent”) is
`entitled “Breathing Assistance Apparatus.” ResMed Corp admits that the ’741
`Patent issued on July 9, 2013 and that a copy of the ’741 Patent is attached to the
`Complaint as Exhibit 2. ResMed Corp otherwise denies the allegations in paragraph
`11 of the Complaint.
`12. ResMed Corp admits that U.S. Patent 8,186,345 (“the ’345 Patent”) is
`entitled “Apparatus for Supplying Gases to a Patient.” ResMed Corp admits that the
`’345 Patent issued on May 29, 2012 and that a copy of the ’345 Patent is attached to
`the Complaint as Exhibit 3. ResMed Corp otherwise denies the allegations in
`paragraph 12 of the Complaint.
`13. ResMed Corp admits that U.S. Patent 8,453,641 (“the ’641 Patent”) is
`entitled “Apparatus for Measuring Properties of Supplied Gases to a Patient.”
`ResMed Corp admits that the ’641 Patent issued on June 4, 2013 and that a copy of
`the ’641 Patent is attached to the Complaint as Exhibit 4. ResMed Corp otherwise
`denies the allegations in paragraph 13 of the Complaint.
`14. ResMed Corp admits that U.S. Patent 9,265,902 (“the ’902 Patent”) is
`entitled “Apparatus for Measuring Properties of Gases Supplied to a Patient.”
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`ResMed Corp admits that the ’902 Patent issued on February 23, 2016 and that a
`copy of the ’902 Patent is attached to the Complaint as Exhibit 5. ResMed Corp
`otherwise denies the allegations in paragraph 14 of the Complaint.
`15. ResMed Corp admits that U.S. Patent 8,550,072 (“the ’072 Patent”) is
`entitled “Apparatus for Delivering Humidified Gases.” ResMed Corp admits that
`the ‘’807 Patent issued on October 8, 2013 and that a copy of the ’072 Patent is
`attached to the Complaint as Exhibit 6. ResMed Corp otherwise denies the
`allegations in paragraph 15 of the Complaint.
`16. ResMed Corp admits that U.S. Patent 8,091,547 (“the ’547 Patent”) is
`entitled “Apparatus for Delivering Humidified Gases.” ResMed Corp admits that
`the ’547 Patent issued on January 10, 2012 and that a copy of the ’547 Patent is
`attached to the Complaint as Exhibit 7. ResMed Corp otherwise denies the
`allegations in paragraph 16 of the Complaint.
`17. ResMed Corp admits that U.S. Patent 7,111,624 (“the ’624 Patent”) is
`entitled “Apparatus for Delivering Humidified Gases.” ResMed Corp admits that
`the ’624 Patent issued on September 26, 2006 and that a copy of the ’624 Patent is
`attached to the Complaint as Exhibit 8. ResMed Corp otherwise denies the
`allegations in paragraph 17 of the Complaint.
`18. ResMed Corp admits that U.S. Patent 6,398,197 (“the ’197 Patent”) is
`entitled “Water Chamber.” ResMed Corp admits that the ’197 Patent issued on June
`4, 2002 and that a copy of the ’197 Patent is attached to the Complaint as Exhibit 9.
`ResMed Corp otherwise denies the allegations in paragraph 18 of the Complaint.
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`IV. RESMED CORP’S ALLEGED ACTIVITIES
`19. ResMed Corp admits that it has offered to sell and has sold products
`under the names AirSense™ 10 AutoSet, Airsense™ 10 AutoSet for Her,
`AirSense™10 CPAP, and AirSense™ 10 Elite in the United States. ResMed Corp
`otherwise denies the allegations in paragraph 19 of the Complaint.
`20. ResMed Corp admits that it has offered to sell and has sold products
`under the names AirCurve™ 10 ASV, AirCurve™ 10 S, AirCurve™ 10 VAuto, and
`AirCurve™ 10 ST in the United States. ResMed Corp otherwise denies the
`allegations in paragraph 20 of the Complaint.
`21. ResMed Corp admits that it has offered to sell and has sold products
`under the name ClimateLineAir™ in the United States. ResMed Corp otherwise
`denies the allegations in paragraph 21 of the Complaint.
`22. ResMed Corp admits that it has offered to sell and has sold products
`under the names Swift™ FX and the Swift™ LT in the United States. ResMed
`Corp otherwise denies the allegations in paragraph 22 of the Complaint.
`
`
`FIRST CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,443,807)
`23. ResMed Corp incorporates by reference its responses to paragraphs 1-
`22 as if repeated here verbatim.
`24. ResMed Corp denies the allegations in paragraph 24 of the Complaint.
`25. ResMed Corp denies the allegations in paragraph 25 of the Complaint.
`26. ResMed Corp denies the allegations in the first sentence of paragraph
`26 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 26 as they paraphrase limitations from the ’807 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
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`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 26 in their entirety.
`27. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare dated February 27, 2015 that mentioned the ’807 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 27 in their entirety.
`28. ResMed Corp denies the allegations in paragraph 28 of the Complaint.
`29. ResMed Corp denies the allegations in paragraph 29 of the Complaint.
`30. ResMed Corp denies the allegations in paragraph 30 of the Complaint.
`31. ResMed Corp denies the allegations in paragraph 31 of the Complaint.
`32. ResMed Corp denies the allegations in paragraph 32 of the Complaint.
`33. ResMed Corp denies the allegations in paragraph 33 of the Complaint.
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`SECOND CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,479,741)
`34. ResMed Corp incorporates by reference its responses to paragraphs 1-
`33 as if repeated here verbatim.
`35. ResMed Corp denies the allegations in paragraph 35 of the Complaint.
`36. ResMed Corp denies the allegations in paragraph 36 of the Complaint.
`37. ResMed Corp denies the allegations in the first sentence of paragraph
`37 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 37 as they paraphrase limitations from the ’741 patent’s
`claims and provide no explanation as to how the limitations are met, and because the
`claim limitations may require construction by the Court before an infringement
`analysis can be performed. ResMed Corp otherwise denies the allegations in
`paragraph 37 in their entirety.
`38. ResMed Corp denies the allegations in paragraph 38 as they paraphrase
`limitations from the ’741 patent’s claims and provide no explanation as to how the
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`limitations are met, and because the claim limitations may require construction by
`the Court before an infringement analysis can be performed. ResMed Corp
`otherwise denies the allegations in paragraph 38 in their entirety.
`39. ResMed Corp denies the allegations in paragraph 39 as they paraphrase
`limitations from the ’741 patent’s claims and provide no explanation as to how the
`claim limitations are met. and because the claim limitations may require
`construction by the Court before an infringement analysis can be performed.
`ResMed Corp otherwise denies the allegations in paragraph 39 in their entirety.
`40. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare dated February 27, 2015 that mentioned the ’741 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 40 in their entirety.
`41. ResMed Corp denies the allegations in paragraph 41 of the Complaint.
`42. ResMed Corp denies the allegations in paragraph 42 of the Complaint.
`43. ResMed Corp denies the allegations in paragraph 43 of the Complaint.
`44. ResMed Corp denies the allegations in paragraph 44 of the Complaint.
`45. ResMed Corp denies the allegations in paragraph 45 of the Complaint.
`46. ResMed Corp denies the allegations in paragraph 46 of the Complaint.
`47. ResMed Corp denies the allegations in paragraph 47 of the Complaint
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`THIRD CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,186,345)
`48. ResMed Corp incorporates by reference its responses to paragraphs 1-
`47 as if repeated here verbatim.
`49. ResMed Corp denies the allegations in paragraph 49 of the Complaint.
`50. ResMed Corp denies the allegations in paragraph 50 of the Complaint.
`51. ResMed Corp denies the allegations in the first sentence of paragraph
`51 of the Complaint. ResMed Corp denies the allegations in the remaining
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`sentences in paragraph 51 as they paraphrase limitations from the ’345 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 51 in their entirety.
`52. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare dated February 22, 2016 that mentioned the ’345 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed's patents.
`ResMed Corp otherwise denies the allegations in paragraph 52 in their entirety.
`53. ResMed Corp denies the allegations in paragraph 53 of the Complaint.
`54. ResMed Corp denies the allegations in paragraph 54 of the Complaint.
`55. ResMed Corp denies the allegations in paragraph 55 of the Complaint.
`56. ResMed Corp denies the allegations in paragraph 56 of the Complaint.
`57. ResMed Corp denies the allegations in paragraph 57 of the Complaint.
`58. ResMed Corp denies the allegations in paragraph 58 of the Complaint.
`59. ResMed Corp denies the allegations in paragraph 59 of the Complaint.
`60. ResMed Corp denies the allegations in paragraph 60 of the Complaint.
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`FOURTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,453,641)
`61. ResMed Corp incorporates by reference its responses to paragraphs 1-
`60 as if repeated here verbatim.
`62. ResMed Corp denies the allegations in paragraph 62 of the Complaint.
`63. ResMed Corp denies the allegations in paragraph 63 of the Complaint.
`64. ResMed Corp denies the allegations in the first sentence of paragraph
`64 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 64 as they paraphrase limitations from the ’641 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
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`because the claim limitations may require construction by the Court before an
`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 64 in their entirety.
`65. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare dated February 22, 2016 that mentioned the ’641 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 65 in their entirety.
`66. ResMed Corp denies the allegations in paragraph 66 of the Complaint.
`67. ResMed Corp denies the allegations in paragraph 67 of the Complaint.
`68. ResMed Corp denies the allegations in paragraph 68 of the Complaint.
`69. ResMed Corp denies the allegations in paragraph 69 of the Complaint.
`70. ResMed Corp denies the allegations in paragraph 70 of the Complaint.
`71. ResMed Corp denies the allegations in paragraph 71 of the Complaint.
`72. ResMed Corp denies the allegations in paragraph 72 of the Complaint.
`73. ResMed Corp denies the allegations in paragraph 73 of the Complaint.
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`FIFTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 9,265,902)
`74. ResMed Corp incorporates by reference its responses to paragraphs 1-
`73 as if repeated here verbatim.
`75. ResMed Corp denies the allegations in paragraph 75 of the Complaint.
`76. ResMed Corp denies the allegations in paragraph 76 of the Complaint.
`77. ResMed Corp denies the allegations in the first sentence of paragraph
`77 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 63 as they paraphrase limitations from the ’902 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
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`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 77 in their entirety.
`78. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare dated February 22, 2016 that mentioned the ’902 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents. .
`ResMed Corp otherwise denies the allegations in paragraph 78 in their entirety.
`79. ResMed Corp denies the allegations in paragraph 79 of the Complaint.
`80. ResMed Corp denies the allegations in paragraph 80 of the Complaint.
`81. ResMed Corp denies the allegations in paragraph 81 of the Complaint.
`82. ResMed Corp denies the allegations in paragraph 82 of the Complaint.
`83. ResMed Corp denies the allegations in paragraph 83 of the Complaint.
`84. ResMed Corp denies the allegations in paragraph 84 of the Complaint.
`85. ResMed Corp denies the allegations in paragraph 85 of the Complaint.
`86. ResMed Corp denies the allegations in paragraph 86 of the Complaint.
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`SIXTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,550,072)
`87. ResMed Corp incorporates by reference its responses to paragraphs 1-
`86 as if repeated here verbatim.
`88. ResMed Corp denies the allegations in paragraph 88 of the Complaint.
`89. ResMed Corp denies the allegations in paragraph 89 of the Complaint.
`90. ResMed Corp denies the allegations in the first sentence of paragraph
`90 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 90 as they paraphrase limitations from the ’072 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 90 in their entirety.
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`91. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare on or about October 1, 2015 that mentioned the ’072 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 91 in their entirety.
`92. ResMed Corp denies the allegations in paragraph 92 of the Complaint.
`93. ResMed Corp denies the allegations in paragraph 93 of the Complaint.
`94. ResMed Corp denies the allegations in paragraph 94 of the Complaint.
`95. ResMed Corp denies the allegations in paragraph 95 of the Complaint.
`96. ResMed Corp denies the allegations in paragraph 96 of the Complaint.
`97. ResMed Corp denies the allegations in paragraph 97 of the Complaint.
`98. ResMed Corp denies the allegations in paragraph 98 of the Complaint.
`99. ResMed Corp denies the allegations in paragraph 99 of the Complaint.
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`SEVENTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,091,547)
`100. ResMed Corp incorporates by reference its responses to paragraphs 1-
`99 as if repeated here verbatim.
`101. ResMed Corp denies the allegations in paragraph 101 of the Complaint.
`102. ResMed Corp denies the allegations in paragraph 102 of the Complaint.
`103. ResMed Corp denies the allegations in the first sentence of paragraph
`103 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 103 as they paraphrase limitations from the ’547 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 103 in their entirety.
`104. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare on or about October 1, 2015 that mentioned the ’547 patent, after
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`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 104 in their entirety.
`105. ResMed Corp denies the allegations in paragraph 105 of the Complaint.
`106. ResMed Corp denies the allegations in paragraph 106 of the Complaint.
`107. ResMed Corp denies the allegations in paragraph 107 of the Complaint.
`108. ResMed Corp denies the allegations in paragraph 108 of the Complaint.
`109. ResMed Corp denies the allegations in paragraph 109 of the Complaint.
`110. ResMed Corp denies the allegations in paragraph 110 of the Complaint.
`111. ResMed Corp denies the allegations in paragraph 111 of the Complaint.
`112. ResMed Corp denies the allegations in paragraph 112 of the Complaint.
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`EIGHTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 7,111,624)
`113. ResMed Corp incorporates by reference its responses to paragraphs 1-
`112 as if repeated here verbatim.
`114. ResMed Corp denies the allegations in paragraph 114 of the Complaint.
`115. ResMed Corp denies the allegations in paragraph 115 of the Complaint.
`116. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare on or about October 1, 2015 that mentioned the ’624 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 116 in their entirety.
`117. ResMed Corp denies the allegations in the first sentence of paragraph
`117 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 117 as they paraphrase limitations from the ’624 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 117 in their entirety.
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`118. ResMed Corp denies the allegations in paragraph 118 of the Complaint.
`119. ResMed Corp denies the allegations in paragraph 119 of the Complaint.
`120. ResMed Corp denies the allegations in paragraph 120 of the Complaint.
`121. ResMed Corp denies the allegations in paragraph 121 of the Complaint.
`122. ResMed Corp denies the allegations in paragraph 122 of the Complaint.
`123. ResMed Corp denies the allegations in paragraph 123 of the Complaint.
`124. ResMed Corp denies the allegations in paragraph 124 of the Complaint.
`125. ResMed Corp denies the allegations in paragraph 125 of the Complaint.
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`NINTH CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 6,398,197)
`126. ResMed Corp incorporates by reference its responses to paragraphs 1-
`125 as if repeated here verbatim.
`127. ResMed Corp denies the allegations in paragraph 127 of the Complaint.
`128. ResMed Corp denies the allegations in paragraph 128 of the Complaint.
`129. ResMed Corp denies the allegations in the first sentence of paragraph
`129 of the Complaint. ResMed Corp denies the allegations in the remaining
`sentences in paragraph 129 as they paraphrase limitations from the ’197 patent’s
`claims and provide no explanation as to how the claim limitations are met, and
`because the claim limitations may require construction by the Court before an
`infringement analysis can be performed. ResMed Corp otherwise denies the
`allegations in paragraph 129 in their entirety.
`130. ResMed Corp admits that it received a communication from Fisher &
`Paykel Healthcare on or about October 1, 2015 that mentioned the ’197 patent, after
`ResMed informed Fisher & Paykel Healthcare it was infringing ResMed’s patents.
`ResMed Corp otherwise denies the allegations in paragraph 130 in their entirety.
`131. ResMed Corp denies the allegations in paragraph 131 of the Complaint.
`132. ResMed Corp denies the allegations in paragraph 132 of the Complaint.
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`133. ResMed Corp denies the allegations in paragraph 133 of the Complaint.
`134. ResMed Corp denies the allegations in paragraph 134 of the Complaint.
`135. ResMed Corp denies the allegations in paragraph 135 of the Complaint.
`136. ResMed Corp denies the allegations in paragraph 136 of the Complaint.
`137. ResMed Corp denies the allegations in paragraph 137 of the Complaint.
`138. ResMed Corp denies the allegations in paragraph 138 of the Complaint.
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`V. RESMED CORP’S AFFIRMATIVE DEFENSES
`
`139. Without prejudice to the denials set forth in its Answer and without
`admitting any allegations in the Complaint not otherwise admitted, ResMed Corp
`asserts the following affirmative defenses. ResMed Corp reserves the right to allege
`additional affirmative defenses and amend its presently pled affirmative defenses as
`additional facts become known throughout the course of discovery:
`
`
`FIRST AFFIRMATIVE DEFENSE
`(Non-Infringement)
`140. ResMed Corp has not directly infringed and does not currently directly
`infringe literally or under the doctrine of equivalents any valid claim of the ’807,
`’741, ’345, ’641, ’902, ’072, ’547, ’624, or ’197 patents.
`
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`SECOND AFFIRMATIVE DEFENSE
`(No Induced Infringement)
`141. ResMed Corp has not induced infringement of, and does not and will
`not induce infringement of, any valid and enforceable claim of the ’807, ’741, ’345,
`’641, ’902, ’072, ’547, ’624, and ’197 patents.
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`THIRD AFFIRMATIVE DEFENSE
`(No Contributory Infringement)
`142. ResMed Corp has not contributed to the infringement of, and does not
`and will not contribute to infringement of, any valid and enforceable claim of the
`’807, ’741, ’345, ’641, ’902, ’072, ’547, ’624, and ’197 patents.
`
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`FOURTH AFFIRMATIVE DEFENSE
`(No Willful Infringement)
`143. ResMed Corp has not willfully infringed, and does not and will not
`willfully infringe, any valid and enforceable claim of the ’807, ’741, ’345, ’641,
`’902, ’072, ’547, ’624, and ’197 patents.
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`FIFTH AFFIRMATIVE DEFENSE
`(Invalidity)
`144. The claims of the ’807, ’741, ’345, ’641, ’902, ’072, ’547, ’624, and
`’197 patents are invalid because they fail to satisfy the requirements of patentability
`provided in Title 35 of the United States Code, including 35 U.S.C. §§ 101, 102,
`103 and 112 and other judicially created bases for invalidation.
`
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`SIXTH AFFIRMATIVE DEFENSE
`(Failure to State a Claim)
`145. The Complaint fails to state a valid claim that this is an exceptional
`case or that FPH is entitled to enhanced damages. This is not an exceptional case
`and FPH is not entited to enhanced damages.
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`SEVENTH AFFIRMATIVE DEFENSE
`(No Right to Injunctive Relief)
`146. FPH is not entitled to injunctive relief, including because it has not
`suffered any irreparable injury and an adequate remedy at law is available for any
`purported injury.
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`V. RESMED CORP’S PRAYER FOR RELIEF
`WHEREFORE, ResMed Corp denies that FPH is entitled to any of the relief
`requested or to any relief whatsoever.
`ResMed Corp respectfully requests the Court:
`a.
`dismiss FPH’s action with prejudice;
`b.
`enter judgment in favor of ResMed Corp;
`c.
`deny FPH any of the relief it has requested or any other relief
`whatsoever;
`award ResMed Corp its reasonable attorneys’ fees and costs incurred in
`d.
`defending this action pursuant to 35 U.S.C. § 285; and
`e.
`award ResMed Corp such further relief as the Court deems just and
`appropriate.
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`COUNTERCLAIMS
`Plaintiffs ResMed Inc., ResMed Corp, and ResMed Ltd (individually and
`collectively, “ResMed”) hereby complain of Counterclaim-defendants Fisher &
`Paykel Healthcare Corporation Limited, Fisher & Paykel Healthcare Limited, Fisher
`& Paykel Healthcare Inc., and Fisher & Paykel Healthcare Distribution Inc.
`(individually and collectively, “F&P”) and alleges as follows:
`
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`I. THE PARTIES
`1.
`Counterclaim Plaintiff ResMed Inc. is a corporation organized under
`the laws of the state of Delaware with its principal place of business in this district
`in San Diego, California.
`2.
`Counterclaim Plaintiff ResMed Corp is a corporation organized under
`the laws of the state of Minnesota with its principal place of business in this district
`in San Diego, California.
`3.
`Counterclaim Plaintiff ResMed Ltd is a corporation organized under
`the laws of Australia, having its principal place of business in Bella Vista, New
`South Wales, Australia.
`4.
`Counterclaim ResMed Corp and ResMed Ltd are, respectively, direct
`and indirect subsidiaries of ResMed Inc.
`5.
`On information and belief, Defendant Fisher & Paykel Healthcare
`Corporation Limited ("F&P Healthcare Corp. Ltd") is a New Zealand corporation
`having a principal place of business at 15 Maurice Paykel Place, East Tamaki,
`Auckland 2013, New Zealand, PO Box 14 348, Panmure, Auckland, New Zealand.
`6.
`On information and belief, F&P Healthcare Corp. Ltd is the parent
`company of the counterclaim-defendant Fisher & Paykel Healthcare entities.
`7.
`On information and belief, Counterclaim Defendant Fisher & Paykel
`Healthcare Limited (“F&P Healthcare Ltd”) is a New Zealand corporation having a
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`principal place of business at 15 Maurice Paykel Place, East Tamaki, Auckland
`2013, New Zealand, PO Box 14 348, Panmure, Auckland, New Zealand.
`8.
`On information and belief, F&P Healthcare Ltd is a subsidiary of F&P
`Healthcare Corp. Ltd.
`9.
`On information and belief, Counterclaim Defendant Fisher & Paykel
`Healthcare Inc. (