Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.1 Page 1 of 65
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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
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`RESMED INC., a Delaware Corporation,
`CASE NO:
`
`RESMED CORP, a Minnesota Corporation,
`COMPLAINT FOR PATENT
`and RESMED LTD, an Australian
`INFRINGEMENT
`Corporation,
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`FISHER & PAYKEL HEALTHCARE
`CORPORATION LIMITED, a New Zealand
`Corporation, FISHER & PAYKEL
`HEALTHCARE LIMITED, a New Zealand
`Corporation, FISHER & PAYKEL
`HEALTHCARE INC., a California
`Corporation, FISHER & PAYKEL
`HOLDINGS INC., a California Corporation,
`and FISHER & PAYKEL HEALTHCARE
`DISTRIBUTION INC., a California
`Corporation
`
`
`
`Plaintiffs,
`
`
`v.
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`
`
`Defendants.
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`
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`
`CASE NO._______
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`'16
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`CV2072
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`MDD
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`JAH
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`

`

`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.2 Page 2 of 65
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`Plaintiff ResMed Inc, Plaintff ResMed Corp., and Plaintiff ResMed Ltd
`hereby complains of Defendant Fisher & Paykel Healthcare Corporation Limited,
`Defendant Fisher & Paykel Healthcare Limited, Defendant Fisher & Paykel
`Healthcare Inc., Defendant Fisher & Paykel Holdings Inc., and Fisher & Paykel
`Healthcare Distribution Inc. and alleges as follows:
`PARTIES
`1.
`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.
`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.
`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.
`ResMed Corp and ResMed Ltd are, respectively, direct and indirect
`subsidiaries of ResMed Inc.
`5.
`As used herein, the term “Plaintiffs” or “ResMed” means individually
`and/or collectively ResMed Inc., ResMed Corp, and ResMed Ltd.
`6.
`On information and belief, Defendant Fisher & Paykel Healthcare
`Corporation Limited (“F&P Healthcare Corp. Ltd”) is a corporation organized under
`the laws of the country of New Zealand and is the overall parent company of Fisher
`& Paykel Healthcare entities.
`7.
`On information and belief, F&P Healthcare Corp. Ltd has its principal
`place of business at 15 Maurice Paykel Place, East Tamaki, Auckland 2013, New
`Zealand.
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.3 Page 3 of 65
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`8.
`On information and belief, Defendant Fisher & Paykel Healthcare
`Limited (“F&P Healthcare Ltd”) is a New Zealand subsidiary of F&P Healthcare
`Corp. Ltd.
`9.
`On information and belief, F&P Healthcare Ltd is a corporation
`organized under the laws of the country of New Zealand.
`10. On information and belief, F&P Healthcare Ltd has its principal place
`of business at 15 Maurice Paykel Place, East Tamaki, Auckland 2013, New Zealand.
`11. On information and belief, Defendant Fisher & Paykel Holdings Inc.
`(“F&P Holdings Inc.”) is a U.S. subsidiary of F&P Healthcare Corp. Ltd.
`12. On information and belief, F&P Holdings Inc is a corporation
`organized under the laws of the state of California.
`13. On information and belief, F&P Holdings Inc. is a corporation with its
`principal place of business at 15365 Barranca Parkway, Irvine, CA 92618.
`14. On information and belief, Defendant Fisher & Paykel Healthcare Inc
`(“F&P Healthcare Inc.”) is a U.S. sales entity and subsidiary of F&P Holdings Inc.
`15. On information and belief, F&P Healthcare Inc. is a corporation
`organized under the laws of the state of California.
`16. On information and belief, F&P Healthcare Inc. is a corporation with
`its principal place of business at 15365 Barranca Parkway, Irvine, CA 92618.
`17. On information and belief, Fisher & Paykel Healthcare Distribution
`Inc. (“F&P Healthcare Dist.”) is a U.S. distribution entity and subsidiary of F&P
`Holdings Inc.
`18. On information and belief, F&P Healthcare Dist. is a corporation
`organized under the laws of the state of California.
`19. On information and belief, F&P Healthcare Dist. is a corporation with
`its principal place of business at 15365 Barranca Parkway, Irvine, CA 92618.
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`20. As used herein, the term “Defendants” or “F&P” means individually
`and/or collectively F&P Healthcare Corp. Ltd., F&P Healthcare Ltd., F&P Holdings
`Inc., F&P Healthcare Inc., and F&P Healthcare Dist.
`JURISDICTION AND VENUE
`21. This Court has subject matter jurisdiction over the claims pleaded
`herein under 28 U.S.C. §§ 1331 and 1338(a) because the actions below concern a
`federal question arising under the patent laws of the United States, including 35
`U.S.C. § 271.
`22. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b), (c)
`and 1400(b) because, among other reasons, F&P is subject to personal jurisdiction in
`this judicial district and has committed acts of infringement in this judicial district or
`will imminently commit acts of infringement in this judicial district.
`23. Upon information and belief, F&P has placed infringing products
`and/or will place infringing products into the stream of commerce by shipping those
`products into this judicial district and/or by knowing that such products would be
`shipped into this judicial district.
`24. F&P’s established distribution network distributes sleep-disordered
`breathing treatment systems and products directly to customers located in this
`district.
`25. For those products soon to be released in the United States, F&P’s
`established distribution network would distribute the sleep-disordered breathing
`treatment systems and directly to customers located in this district.
`26. For example, upon information and belief, F&P is a manufacturer and
`distributor of durable medical equipment, including systems and components thereof
`for the treatment of sleep-disordered breathing, such as obstructive sleep apnea.
`27. On information and belief, F&P develops, manufactures, and markets
`sleep-disordered breathing treatment systems and components thereof that infringe
`one or more claims of the Patents-in-Suit, as defined below.
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`CASE NO._______
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`28. On information and belief, F&P’s sleep-disordered breathing treatment
`systems and components thereof are manufactured, assembled, packaged, and/or
`tested outside of the United States.
`29.
` On information and belief, F&P then imports the accused sleep-
`disordered breathing treatment systems and components thereof into the United
`States, sells them for importation, or sells them in the United States after
`importation.
`30. Upon information and belief, F&P distributes the products nationally,
`including in this district.
`31. By importing into the United States, shipping into, selling, offering to
`sell, and/or using products that infringe the patents-in-suit in this district, or by
`inducing or causing those acts to occur, F&P has transacted and continues to
`transact business and perform work and services in this district, has supplied and
`continues to supply services and things in this district, has caused and continues to
`cause injury and damages in this district by acts and omissions in this district, and
`has caused and continues to cause injury and damages in this district by acts or
`omissions outside of this district while deriving substantial revenue from services or
`things used or consumed within this district, and will continue to do so unless
`enjoined by this Court.
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`THE PATENTS
`32. ResMed Ltd is the owner by assignment of all right, title, and interest
`in and to United States Patent No. 8,944,061 patent entitled “Cushion To Frame
`Assembly Mechanism,” (hereinafter “the ’061 patent”), which was duly and legally
`issued on February 3, 2015.
`33. The ’061 patent is valid, enforceable, and currently in full force and
`effect. A copy of the ’061 patent is attached as Exhibit A.
`34. ResMed Inc. is the exclusive licensee of the ’061 patent and has
`exclusively sublicensed the patent to ResMed Corp., the U.S. sales subsidiary.
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`35. ResMed Ltd. is the owner by assignment of all right, title, and interest
`in and to United States Patent No. 8,950,404 entitled “Headgear For Masks,”
`(hereinafter “the ’404 patent”), which was duly and legally issued on February 10,
`2015.
`36. The ’404 patent is valid, enforceable, and currently in full force and
`effect. A copy of the ’404 patent is attached as Exhibit B.
`37. ResMed Inc. is the exclusive licensee of the ’404 patent and has
`exclusively sublicensed the patent to ResMed Corp., the U.S. sales subsidiary.
`38. ResMed Ltd. is the owner by assignment of all right, title, and interest
`in and to United States Patent No. 9,027,556 entitled “Mask System,” (hereinafter
`“the ’556 patent”), which was duly and legally issued on May 12, 2015.
`39. The ’556 patent is valid, enforceable, and currently in full force and
`effect. A copy of the ’556 patent is attached as Exhibit C.
`40. ResMed Inc. is the exclusive licensee of the ’556 patent and has
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`41. ResMed Ltd is the owner by assignment of all right, title, and interest
`in and to United States Patent No. 9,381,316 entitled “Interchangeable Mask
`Assembly,” (hereinafter “the ’316 patent”), which was duly and legally issued on
`July 5, 2016.
`42. The ’316 patent is valid, enforceable, and currently in full force and
`effect. A copy of the ’316 patent is attached as Exhibit D.
`43. ResMed Inc. is the exclusive licensee of the ’316 patent and has
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`44. As used herein, the term “Patents-in-Suit” means individually and/or
`collectively the ’061 patent, the ’404 patent, the ’556 patent, and the ’316 patent.
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`BACKGROUND
`45. ResMed is a leading developer, manufacturer and distributor of medical
`equipment for treating, diagnosing, and managing sleep-disordered breathing and
`other respiratory disorders.
`46. The company is dedicated to developing innovative products to
`improve the lives of those who suffer from these conditions and to increasing
`awareness among patients and healthcare professionals of the potentially serious
`health consequences of untreated sleep-disordered breathing (sometimes referred to
`as “SDB”).
`47. Since it was founded in 1989, ResMed has focused on developing and
`commercializing systems for the treatment of obstructive sleep apnea (“OSA”), a
`major subset of SDB.
`48. ResMed’s development of innovative therapies for the treatment of
`OSA has resulted in over 4,000 patents granted or pending worldwide, and its
`product line incorporates technology that is a highly effective and proven way to
`treat OSA.
`49. ResMed has invested hundreds of millions of dollars in research and
`development.
`50.
`It has been estimated that SDB in general, and OSA in particular,
`affects approximately 20% of the adult population, making it as widespread as
`diabetes or asthma.
`51. However, awareness of OSA is relatively low; one study in 2002
`concluded that about 90% of people with OSA remain undiagnosed and untreated.
`52. Therefore, ResMed has made substantial investments directed to
`increasing education and awareness of the health consequences of untreated SDB
`among both the general public and physicians.
`53. ResMed’s portfolio of SDB products includes flow generators,
`humidifiers, diagnostic products, mask systems, headgear and other accessories,
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.8 Page 8 of 65
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`including, for example, certain sleep-disordered breathing treatment masks,
`including the Quattro Air, Quattro Air for Her, Quattro FX, Quattro FX for Her,
`AirFit N10, AirFit N10 for Her, AirFit F10, AirFit F10 for Her, Mirage FX, and
`Mirage FX for Her.
`54. ResMed marks its patents on some products and marks all of its
`products on its website at: www.resmed.com/ip.
`55. On information and belief, F&P, on its own and/or through its
`subsidiaries, is in the business of manufacturing, packaging, importing, selling,
`offering to sell, and/or distributing a variety of sleep-disordered breathing treatment
`systems and components thereof, including, but not limited to, F&P’s Eson product
`line, F&P’s Eson 2 product line, and F&P’s Simplus product line (collectively,
`“Accused Products”).
`56. By way of example, F&P markets both the Eson and Simplus Mask
`System as masks for sleep apnea, being one component for the continuous positive
`airway pressure (“CPAP”) therapy system.
`57. On information and belief, F&P offers for sale, sells, licenses, and/or
`distributes the Accused Products in the United States, including within this district,
`and/or imports the Accused Products into the United States.
`58. On information and belief, F&P was aware of ResMed’s products that
`practice the patents identified in this Complaint.
`59. F&P markets the structure, operation, and use of the Simplus System to
`the public.
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.9 Page 9 of 65
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`60. By way of example, on its website, F&P markets the use of the Simplus
`System for Sleep Apnea:
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`61. By way of example, on its website, F&P markets that the Simplus
`System includes three components, the RollFit Seal, the ErgoForm Headgear, and
`Easy Frame:
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`62. By way of example, on its website, F&P markets the structure of the
`Simplus System including the RollFit Seal, the ErgoForm Headgear, and Easy
`Frame.
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`63. By way of example, on its website, F&P markets that the Simplus
`System includes a RollFit Seal:
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`64. Below is a close up photo of the Simplus System RollFit Seal
`composed a two portions, a first portion of one material and a second portion of a
`second material that is more flexible than the first portion:
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`65. By way of example, on its website, F&P markets that the Simplus
`System includes a ErgoFoarm Headgear:
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`66. By way of example, on its website, F&P markets that the Simplus
`System includes an Easy Frame:
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`67. Below is a close up photo showing the Easy Frame, including an upper
`support member, two lower headgear clip attachments, an annular connection
`adapted to engage an elbow of an inlet conduit, and an opening located between the
`annular connection and the upper support member.
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`CASE NO._______
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`68. By way of example, on its website, F&P markets the Mask Parts of the
`Simplus System:
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`69. By way of example, on its website, F&P markets Fitting Your Mask for
`the Simplus System:
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`70. By way of example, on its website, F&P markets Mask
`Assembly/Disassembly for the Simplus System:
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`71. F&P markets the structure, operation, and use of the Eson System to
`the public. By way of example, F&P provides instruction to the public on the
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`structure, function, use, and purchasing on its website, including at least marketing
`materials, sales materials, purchasing information, videos, catalogues, specification
`sheets, user instructions, and guides. Further, by way of example, F&P provides
`instruction to the public on the structure, function, and use of the Eson System
`product in the product packaging; including at least user instructions.
`72. By way of example, on its website, F&P markets the use of the Eson
`System as a Nasal Mask for Sleep Apnea:
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`73. By way of example, on its website, F&P markets that the Eson System
`includes three components, the RollFit Seal, the ErgoFit Headgear, and Easy Frame:
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`74. By way of example, on its website, F&P markets that the Eson System
`includes a RollFit Seal:
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`75. By way of example, on its website, F&P markets that the Eson System
`includes a ErgoFit Headgear:
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`76. By way of example, on its website, F&P markets that the Eson System
`includes an Easy Frame:
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`77. By way of example, on its website, F&P markets the Mask Parts of the
`Eson System:
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`78. By way of example, on its website, F&P markets Fitting Your Mask for
`the Eson System:
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`79. By way of example, on its website, F&P markets Mask
`Assemby/Disassembly for the Eson System:
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`80. On information and belief, F&P has imported the Eson 2 System as a
`Nasal Mask for Sleep Apnea:
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`81. By way of example, on its website, and in its promotional materials,
`including the materials accompanying the imported Eson 2 System, F&P markets
`that the Eson 2 System includes “Key features and benefits” including, the Intuitive
`Headgear, the RollFit Seal and the Easy Frame:
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`82. By way of example, in the materials accompanying the imported Eson
`2 System F&P markets the Mask Parts of the Eson 2 System:
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`17
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`CASE NO._______
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`83. By way of example, in the materials accompanying the imported Eson
`2 System F&P markets Fitting Your Mask for the Eson 2 System:
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`84. By way of example, in the materials accompanying the imported Eson
`2 System F&P markets Mask Assembly/Disassembly for the Eson
`2 System:
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`18
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.20 Page 20 of 65
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`85. On information and belief, because F&P was aware of ResMed’s
`products, F&P was also aware of ResMed patents as a result of patent marking,
`including the marking on ResMed’s website. Moreover, F&P was aware of at least
`the ’404 patent and ’061 patents—and its infringement of the claims thereof—no
`later than on or about February 12, 2015, through written communications from
`ResMed to F&P and no later than on or on about March 4, 2015, through a meeting
`and presentation from ResMed to F&P notifying F&P of its infringement. F&P was
`also aware of at least the ’556 patent—and infringement of the claims thereof—no
`later than August and September 2015, through written communications and a
`meeting and presentation from ResMed to F&P notifying F&P of its infringement.
`86. On information and belief, F&P’s acts of infringement of the patents
`identified below have occurred with knowledge of ResMed’s rights in its patents or
`with willful blindness thereto.
`
`
`FIRST CLAIM FOR RELIEF
`F&P’S INFRINGEMENT OF U.S. PATENT NO. 8,944,061
`87. The allegations of Paragraphs 1-86 are incorporated herein by
`reference.
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`19
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.21 Page 21 of 65
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`88. F&P has directly infringed the claims of the ’061 patent, literally and/or
`under the doctrine of equivalents, by using, offering to sell, and/or selling within the
`United States, and/or importing into the United States, the Accused Products,
`including but not limited to F&P's Simplus System product line.
`89. By way of example, the Accused Products, including at least the
`Simplus Mask System, specifically infringe at least claims 17, 18, 20, 21, 22, 23, 26,
`27, 28, 29, 30, 32, 33, 35, 36, 37, 38, 41, 42, 43, 44, 45, 46, 48, 49, 51, 52, 53, 54,
`55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76,
`77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, and 91 of the '061 patent.
`90. By way of example, the Accused Products specifically infringe at least
`independent claim 17 in the following way.
`91. The Accused Products include a mask assembly for treatment of sleep
`disorder breathing by delivering a flow of pressurized gas to a patient.
`92. By way of example, F&P markets the F&P Simplus System for the
`treatment of sleep apnea involving the delivery of a flow of pressurized gas to the
`wearer of the mask.
`93. The Accused Products include a first frame made of first material.
`94. By way of example, the F&P Simplus System includes a RollFit seal
`frame made of a first material.
`95. The Accused Products include a cushion connected to the first frame,
`the cushion being adapted to form a seal around a patient's nose and mouth and
`being made from a second material that is more flexible than the first material.
`96. By way of example, the F&P Simplus System RollFit Seal includes a
`first portion of one material and a second portion made of a second material forming
`a seal around a patient's nose and mouth and being made from a second material that
`is more flexible than the first material:
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`20
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.22 Page 22 of 65
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`97. The Accused Products include a second frame adapted to constrain the
`first frame, the second frame comprising an upper support member that supports a
`forehead support, two lower headgear clip attachments engaged with clips provided
`to straps of a headgear assembly, an annular connection adapted to engage an elbow
`of an inlet conduit and an opening located between the annular connection and the
`upper support member, the opening providing access to the first frame.
`98. By way of example, the Easy Frame of the Simplus System is adapted
`to constrain the RollFit Seal.
`99. By way of example, the Easy Frame of the Simplus System includes an
`upper support member that supports a forehead support.
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`100. By way of example, the Easy Frame of the Simplus System includes
`two lower headgear clip attachments engaged with clips provided to straps of a
`headgear assembly.
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`21
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.23 Page 23 of 65
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`101. By way of example, the Easy Frame of the Simplus System includes an
`annular connection that adapted to engage an elbow—a ball and socket elbow—of
`an inlet conduit.
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`102. By way of example, the Easy Frame of the Simplus System includes
`and an opening located between the annular connection and the upper support
`member, the opening providing access to the first frame.
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`22
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.24 Page 24 of 65
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`103. ResMed is well-known in the industry for making and selling SDB
`products and ResMed is well-known in the industry to be an innovator.
`104. ResMed also gives notice to the public that its products are patented by
`appropriately marking those products with its applicable patent numbers as
`permitted by 35 U.S.C. §287(a).
`105. Therefore, on information and belief, F&P either must have known
`about the ’061 patent or must have been willfully blind to it at the time they engaged
`in their infringing activities and, in any event, was aware of the ’061 patent at least
`as early as the service date of this complaint.
`106. F&P was aware of the ’061 patent, at least in part through written
`communications from ResMed on or about February 12, 2015 and a meeting
`between ResMed and F&P on or about March 4, 2015 notifying F&P of its
`infringement of this patent.
`107. F&P also induces infringement of the ’061 patent. F&P encourages
`and intends the use, importation, and sale of the Accused Products within the United
`States. For example, at least on its website, F&P advertises the Accused Products
`for use within the United States and instructs patients to use the Accused Products.
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`23
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.25 Page 25 of 65
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`108. On information and belief, F&P lacks reasonable defenses for their
`infringing activities and therefore knows the use, importation, and sale of the
`Accused Products within the United States infringes the ’061 patent.
`109. As a result of F&P’s infringement of the ’061 patent, ResMed has
`suffered and will continue to suffer damage.
`110. ResMed is entitled to recover from F&P the damages adequate to
`compensate for such infringement, which have yet to be determined.
`111. F&P’s acts of infringement have caused and will continue to cause
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`
`SECOND CLAIM FOR RELIEF
`F&P’S INFRINGEMENT OF U.S. PATENT NO. 8,950,404
`112. The allegations of Paragraphs 1-111 are incorporated herein by
`reference.
`113. F&P has directly infringed the claims of the ’404 patent, literally and/or
`under the doctrine of equivalents, by using, offering to sell, and/or selling within the
`United States, and/or importing into the United States, the Accused Products,
`including but not limited to F&P’s Simplus System product line.
`114. By way of example, the Accused Products, including at least the
`Simplus Mask System, specifically infringe at least claims 1, 5, 6, 7, 8, 9, 15, 16, 17,
`27, and 28 of the ’404 patent. By way of example, the Accused Products, including
`at least the Eson 2 Mask System, specifically infringe at least claims 1, 5, 6, 7, 15,
`16, 17, 27, and 28 of the '404 patent.
`115. By way of example, the Accused Products specifically infringe at least
`claim 1 of the ’404 patent in the following way.
`116. The Accused Products include a headgear system for holding a
`respiratory mask in a position on a face of a patient to enhance a mask seal with the
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.26 Page 26 of 65
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`patient's face, the headgear system including a plurality of straps providing a four-
`point arrangement for attachment with the respiratory mask.
`117. By way of example, the Simplus System includes an ErgoForm
`Headgear for holding a respiratory mask, the Simplus System RollFit Seal and Easy
`Frame, in a position on a face of a patient to enhance a mask seal with the patient's
`face, the ErgoForm Headgear including a plurality of straps providing a four-point
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`arrangement for attachment with the Easy Frame.
`118. The Accused Products include at least one upper strap configured to
`extend above the patient’s ears in use.
`119. By way of example, the Simplus System ErgoForm Headgear includes
`at least one upper strap configured to extend above the patient’s ears in use.
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`25
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.27 Page 27 of 65
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`120. The Accused Products include at least one lower strap configured to
`extend below the patient's ears in use.
`121. By way of example, the Simplus System ErgoForm Headgear includes
`at least lower strap configured to extend below the patient’s ears in use.
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`122. The Accused Products include a rear portion.
`123. By way of example, the Simplus System ErgoForm Headgear includes
`a rear portion that contact the rear of the patient’s head.
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`26
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`CASE NO._______
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`Case 3:16-cv-02072-JLS-MDD Document 1 Filed 08/16/16 PageID.28 Page 28 of 65
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`124. The Accused Products include a headgear system wherein at least one
`strap of said plurality of straps is constructed from a laminate having at least a first
`fabric layer and a second fabric layer, said first fabric layer being constructed and
`arranged to be located on a patient-contacting side in use, and said second fabric
`layer being constructed and arranged to be located on a non patient-contacting side
`in use and further wherein said first fabric layer and said second fabric layer are
`joined at a joint configured to be positioned away from the patient's face when in
`use and wherein said at least one strap of said plurality of straps has a first rounded
`lateral edge when viewed in cross-section.
`125. By way of example, the Simplus System ErgoForm Headgear includes
`a headgear system wherein at least one strap of said plurality of straps is constructed
`from a laminate having at least a first fabric layer and a second fabric layer, said
`first fabric layer being constructed and arranged to be located on a patient-
`contacting side in use, and said second fabric layer being constructed and arranged
`to be located on a non patient-contacting side in use and further wherein said first
`fabric layer and said second fabric layer are joined at a joint configured to be
`positioned away from the patient's face when in use and wherein said at least one
`strap of said plurality of straps has a first rounded lateral edge when viewed in
`cross-section.
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`27
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`CASE NO._______
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