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`Roger A. Deming, SBN 228998, denning@fr.corn
`Scott A. Penner, SBN 256713, penner@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
`
`Attorneys for Plaintiffs
`
`--
`
`5
`
`an3373
`
`
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`SOUTHERN DIVISION
`
`H
`
`"by fax
`
`RESMED INC., a Delaware Corporation,
`RESMED CORP, a Minnesota
`Corporation, and RESMED LTD, an
`Australian Corporation,
`
`Case No. SACV-13-00498 C]C (RNBX)
`
`RESMED’S FIRST AMENDED
`COMPLAINT FOR PATENT
`
`Plaintiffs,
`
`INFRINGEMENT
`
`V.
`
`JURY TRIAL DEMANDED
`
`APEX MEDICAL CORPORATION, a
`Taiwanese Corporation, APEX
`MEDICAL USA CORP., a California
`Corporation, and MEDICAL DEPOT,
`INC., d/b/a DRIVE MEDICAL DESIGN
`& MANUFACTURING, a Delaware
`
`Corporation,
`
`Defendants.
`.._M.__;L____._l
`
`Case No. SACV-13-00498 C]C (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`Plaintiffs ResMed Inc., ResMed Corp, and ResMed Ltd (collectively
`
`“Plaintiffs” or “ResMed”) hereby file this first amended complaint against
`
`Defendants APEX Medical Corporation and APEX Medical USA Corp.
`
`(collectively “APEX”) and Medical Depot, Inc., d/b/a Drive Medical Design &
`
`Manufacturing (“Drive”) and allege 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 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 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 APEX Medical Corp. (“APEX
`
`Medical”) is a corporation organized under the laws of the country of Taiwan with
`
`its principal place of business at No. 9, Min Sheng St., Tu-Cheng, New Taipei City,
`
`23679, Taiwan.
`
`7.
`
`On information and belief, Defendant APEX Medical USA Corp.
`
`(“APEX Medical USA”) is the U.S. subsidiary of APEX Medical Corp., and APEX
`
`Medical USA is a corporation organized under the laws of the state of California
`
`with its principal place of business at 615 North Berry St, Suite D, Brea, CA 92821.
`
`8.
`
`As used herein, the term “APEX” means individually and/or
`
`collectively APEX Medical Corporation and APEX Medical USA Corp.
`
`2
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
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`9.
`
`On information and belief, Medical Depot, Inc., d/b/a Drive Medical
`
`Design & Manufacturing (“Drive”) is a corporation organized under the laws of the
`
`State of Delaware with its principal place of business at 99 Seaview Blvd, Suite 210,
`
`Port Washington, NY 11050, USA.
`
`10. As used herein, the term “Defendants” means individually and/or
`
`collectively APEX and Drive.
`
`JURISDICTION AND VENUE
`
`11.
`
`This Court has subject matter jurisdiction over the claims pleaded
`
`herein under 28 U.S.C. §§ 1331 and 133 8(a) because the action concerns a federal
`
`question arising under the patent laws of the United States, including 35 U.S.C. §
`
`271.
`
`12. Venue is proper in this judicial district under 28 U.S.C. §§ 139l(b), (c)
`
`and l400(b) because, among other reasons, APEX Medical, APEX Medical USA,
`
`and Drive are subject to personal jurisdiction in this judicial district and have
`
`committed acts of infringement in this judicial district, and APEX Medical USA has
`
`a regular and established place of business in this judicial district.
`
`13. Upon information and belief, APEX has placed 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. APEX’s
`
`established distribution network distributes accused products directly to customers
`
`located in this district.
`
`14. Upon information and belief, APEX’s established distribution network
`
`also distributes accused products to intermediary suppliers like Drive, who distribute
`
`the products nationally, including in this district. By 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, Defendants have transacted and continue to
`
`transact business and perform work and services in this district, have supplied and
`
`continue to supply services and things in this district, have caused and continue to
`3
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`cause injury and damages in this district by acts and omissions in this district, and
`
`have caused and continue 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.
`
`THE PATENTS
`
`15.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 7,159,587 entitled “Respiratory Mask Having Gas
`
`Washout Vent And Gas Washout Vent Assembly For Respiratory Mask,”
`
`(hereinafter “the ’587 patent”), which was duly and legally issued on January 9,
`
`2007. The ’587 patent is Valid, enforceable, and currently in full force and effect. A
`
`copy of the ‘S87 patent is attached as Exhibit A.
`
`16.
`
`ResMed Inc. is the exclusive licensee of the ’587 patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`
`17.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 7,487,772 entitled “Ergonomic And Adjustable
`
`Respiratory Mask Assembly With Elbow Assembly,” (hereinafter “the ’772
`
`patent”), which was duly and legally issued on February 10, 2009. The ’772 patent
`
`is valid, enforceable, and currently in full force and effect. A copy of the ’772
`
`patent is attached as Exhibit B.
`
`18.
`
`ResMed Inc. is the exclusive licensee of the ’772 patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`
`19.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 7,997,267 entitled “Ergonomic And Adjustable
`
`Respiratory Mask Assembly With Elbow Assembly,” (hereinafter “the ’267
`
`patent”), which was duly and legally issued on August 16, 2011. The ’267 patent is
`
`valid, enforceable, and currently in full force and effect. A copy of the ’267 patent
`
`is attached as Exhibit C.
`
`kDOO\lO\U1-J>-L»Jl\J>-‘
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`28
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`\D00\]O\U1-l>UJl\>>-‘
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`20.
`
`ResMed Inc. is the exclusive licensee of the ’267 patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`
`21.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 7,743,767 entitled “Ergonomic And Adjustable
`
`Respiratory Mask Assembly With Frame,” (hereinafter “the ’767 patent”), which
`
`was duly and legally issued on June 29, 2010. The ’767 patent is valid, enforceable,
`
`and currently in full force and effect. A copy of the ’767 patent is attached as
`
`Exhibit D.
`
`22.
`
`ResMed Inc. is the exclusive licensee of the ’767 patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary
`
`23.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 6,216,691 entitled “Mounting Body,” (hereinafter
`
`“the ’69l patent”), which was duly and legally issued on April 17, 2001. The ’691
`
`patent is valid, enforceable, and currently in full force and effect. A copy of the
`
`’69l patent is attached as Exhibit E.
`
`24.
`
`ResMed Inc. is the exclusive licensee of the ’69l patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`
`25.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 6,935,337 entitled “Humidifier With Structure To
`
`Prevent Backflow Of Liquid Through The Humidifier Inlet,” (hereinafter “the ’337
`
`patent”), which was duly and legally issued on August 30, 2005. The ’337 patent is
`
`valid, enforceable, and currently in full force and effect. A copy of the ’337 patent
`
`is attached as Exhibit F.
`
`26.
`
`ResMed Inc. is the exclusive licensee of the ’337 patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`
`27.
`
`ResMed Ltd is the owner by assignment of all right, title, and interest
`
`in and to United States Patent No. 7,614,398 entitled “Humidifier With Structure To
`
`Prevent Backflow Of Liquid Through The Humidifier Inlet,” (hereinafter
`5
`
`Case No. SACV-13-00498 C]C (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`S\OOO\lO\LI1-l>bJ[\)*-‘
`
`p—§
`
`i.—L
`
`>-A l\J
`
`i—a U)
`
`>-A -k
`
`i—t U1
`
`i—- O’\
`
`>— \]
`
`r--A O0
`
`I-—n KO
`
`[0 O
`
`[0 >—A
`
`l\)l\)
`
`l\J U3
`
`[0-l>-
`
`I\) U1
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`[0 O\
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`l\.) \1
`
`l\) 00
`
`“the ’398 patent”), which was duly and legally issued on November 10, 2009. The
`
`’398 patent is valid, enforceable, and currently in full force and effect. A copy of
`
`the ’398 patent is attached as Exhibit G.
`
`28.
`
`ResMed Inc. is the exclusive licensee of the ’398 patent and has
`
`exclusively sublicensed the patent to ResMed Corp, the U.S. sales subsidiary.
`
`29. As used herein, the term “ResMed Mask Patents” means individually
`
`and/or collectively the ’587 patent, the ’772 patent, the ’267 patent, and the ’767
`
`patent.
`
`30. As used herein, the term “ResMed Device Patents” means individually
`
`and/or collectively the ’691 patent, the ’337 patent, and the ’398 patent.
`
`3 1 .
`
`As used herein, the term “Patents—in-Sui ” means individually and/or
`
`collectively the ResMed Mask Patents and the ResMed Device Patents.
`
`BACKGROUND
`
`32.
`
`ResMed is a leading developer, manufacturer and distributor of medical
`
`equipment for treating, diagnosing, and managing sleep-disordered breathing and
`
`other respiratory disorders. 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”). Since its founding in 1989, ResMed has focused on
`
`developing and commercializing systems for the treatment of obstructive sleep
`
`apnea (“OSA”), a major subset of SDB. ResMed’s development of innovative
`
`therapies for the treatment of OSA has resulted in over 3,000 patents granted or
`
`pending Worldwide, and its product line incorporates technology that is a highly
`
`effective and proven Way to treat OSA.
`
`33.
`
`ResMed’s portfolio of SDB products includes flow generators,
`
`humidifiers, diagnostic products, mask systems, headgear and other accessories,
`
`including, for example, certain sleep-disordered breathing treatment full face masks,
`6
`
`Case No. SACV-l3-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`including the Quattro FX, Quattro FX for Her, and Mirage Quattro. ResMed’s SDB
`
`products also include certain sleep-disordered breathing treatment nasal masks,
`
`including the Mirage FX, Mirage FX for Her, Mirage Liberty, Mirage Micro,
`
`Mirage Activa LT and Mirage Vista. In addition, ResMed’s SDB products include
`
`certain sleep-disordered breathing treatment systems that consist in part of a flow
`
`generator, such as the multiple variations of ResMed’s S9 flow generator, and a
`
`humidifier, such as the H5 i, which works in conjunction with each of ResMed’s
`
`various S9 flow generator units.
`
`34.
`
`ResMed marks its patents on some products and marks all of its
`
`products on its Website at: WWW.resmed.com/ip.
`
`35.
`
`On information and belief, APEX, 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 (a) flow generators and humidifiers,
`
`including, but not limited to, APEX’s XT Fit and iCH Auto (“the Accused APEX
`
`Devices”), and (b) masks, including, but not limited to, APEX’s “WiZARD”
`
`branded masks, including the WiZARD 210 which is intended to cover just the nose
`
`and the WiZARD 220 which is intended to cover the nose and mouth (“the Accused
`
`APEX Masks”). As used hereinafter, the phrase “Accused APEX Products” shall
`
`mean individually and collectively the Accused APEX Devices and the Accused
`
`APEX Masks.
`
`36.
`
`On information and belief, APEX offers for sale, sells, licenses, and/or
`
`distributes Accused APEX Products in the United States, including within this
`
`district, and/or imports the Accused APEX Products into the United States.
`
`37. Drive is an importer and seller of durable medical equipment such as
`
`sleep-disordered breathing treatment systems and components thereof. Drive
`
`markets and sells these products in the United States.
`
`KDOO\lO\U1-l>UJl\J>—‘
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`Case No. SACV-13-00498 C]C (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`3 8.
`
`On information and belief, Drive obtains the Accused APEX Masks
`
`from APEX and sells them in the United States and this district as Drive’s Freedom
`
`210 and Freedom 220 products (“Accused Drive Masks”).
`
`39. On information and belief, Drive offers for sale, sells, licenses, and/or
`
`distributes Accused Drive Masks in the United States, including within this district,
`
`and/or imports the Accused Drive Masks into the United States.
`
`40.
`
`On information and belief, APEX was aware of ResMed’s products that
`
`practice the patents identified in this Complaint. On information and belief, because
`
`APEX was aware of ResMed’s products, APEX was also aware of ResMed patents
`
`as a result of patent marking, including the marking on the website. On information
`
`and belief, APEX’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
`
`APEX’S INFRINGEMENT OF U.S. PATENT NO. 7,159,587
`
`41.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`42. APEX has directly infringed the claims of the ’587 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
`
`APEX Masks.
`
`43.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’5 87 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 ’587 patent at least as early as the service date of this complaint.
`
`\OOO\IO\U1-l>UJl\)"—‘
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`110
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`ll
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`
`Case No. SACV-13-00498 ClC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`\OOO\]O‘\U1-l>.UJl\)i—‘
`
`44.
`
`On information and belief, APEX has induced and continues to induce
`
`infringement of the ’587 patent by actively encouraging customers and others to
`
`import, sell and/or use the Accused APEX Masks in the United States with
`
`knowledge that such import, sale or use would infringe the ’587 patent. On
`
`information and belief, those customers and others in fact infringed the ’587 patent
`
`by importing, selling and/or using the Accused APEX Masks in the United States.
`
`45. As a result of APEX’S infringement of the ’587 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`10
`
`to be determined.
`
`46.
`
`APEX’S acts of infiingement have caused and will continue to cause
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`irreparable harm to ResMed unless and until enjoined by this Court.
`
`A
`
`SECOND CLAIM FOR RELIEF
`
`APEX’S INFRINGEMENT OF U.S. PATENT NO. 7,487,772
`
`47.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`A
`
`48. APEX has directly infringed the claims of the ’772 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
`
`APEX Masks.
`
`49.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’772 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 ’772 patent at least as early as the service date of this complaint.
`
`50.
`
`On information and belief, APEX has induced and continues to induce
`
`infringement of the ’772 patent by actively encouraging customers and others to
`9
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`\OOO\]O\U1-{>9->l\J"—‘
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`import, sell and/or use the Accused APEX Masks in the United States with
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`knowledge that such import, sale or use would infringe the ’772 patent. On
`
`information and belief, those customers and others in fact infringed the ’772 patent
`
`by importing, selling and/or using the Accused APEX Masks in the United States.
`
`51. As a result of APEX’s infringement of the ’772 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`to be determined.
`
`52. APEX’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`THIRD CLAIM FOR RELIEF
`
`APEX’S INFRINGEMENT OF U.S. PATENT N0. 7,997,267
`
`53.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`54. APEX has directly infringed the claims of the ’267 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
`
`APEX Masks.
`
`55.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’267 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 ’267 patent at least as early as the service date of this complaint.
`
`56.
`
`On information and belief, APEX has induced and continues to induce
`
`infringement of the ’267 patent by actively encouraging customers and others to
`
`import, sell and/or use the Accused APEX Masks in the United States with
`
`knowledge that such import, sale or use would infringe the ’267 patent. On
`1 0
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`KOOOQONUI-l>U3l\3"—‘
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`information and belief, those customers and others in fact infringed the ’267 patent
`
`by importing, selling and/or using the Accused APEX Masks in the United States.
`
`57. As a result of APEX’s infringement of the ’267 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`to be determined.
`
`58. APEX’s acts of infiingement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`FOURTH CLAIM FOR RELIEF
`
`APEX’S INFRINGEMENT OF U.S. PATENT N0. 7,743,767
`
`5 9.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`60. APEX has directly infringed the claims of the ’767 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
`
`APEX Masks.
`
`61.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’767 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 ’767 patent at least as early as the service date of this complaint.
`
`62.
`
`On information and belief, APEX has induced and continues to induce
`
`infringement of the ’767 patent by actively encouraging customers and others to
`
`import, sell and/or use the Accused APEX Masks in the United States with
`
`knowledge that such import, sale or use would infringe the ’767 patent. On
`
`information and belief, those customers and others in fact infringed the ’767 patent
`
`by importing, selling and/or using the Accused APEX Masks in the United States.
`1 1
`
`Case No. SACV-13-00498 C]C (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`63. As a result of APEX’s infringement of the ’767 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`to be determined.
`
`64. APEX’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`FIFTH CLAIM FOR RELIEF
`
`DRIVE’S INFRINGEMENT OF U.S. PATENT NO. 7,159,587
`
`65.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`66. Drive has and continues to directly infringe the claims of the ’587
`
`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 Drive Masks.
`
`67.
`
`As a result of Drive’s infringement of the ’587 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`Drive the damages adequate to compensate for such infringement, Which have yet to
`
`be determined.
`
`68. Drive’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`SIXTH CLAIM FOR RELIEF
`
`DRIVE’S INFRINGEMENT OF U.S. PATENT NO. 7,487,772
`
`69.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`70. Drive has and continues to directly infringe the claims of the ’772
`
`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 Drive Masks.
`
`12
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`25
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`26
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`27
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`28
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`71.
`
`As a result of Drive’s infringement of the ’772 patent, ResMed has
`
`suffered and Will continue to suffer damage. ResMed is entitled to recover from
`
`Drive the damages adequate to compensate for such infringement, which have yet to
`
`be determined.
`
`72. Drive’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`SEVENTH CLAIM FOR RELIEF
`
`DRIVE’S INFRINGEMENT OF U.S. PATENT NO. 7 ,997,267
`
`73.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`74. Drive has and continues to directly infringe the claims of the
`
`’267patent, 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 Drive Masks.
`
`75.
`
`As a result of Drive’s infringement of the ’267 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`Drive the damages adequate to compensate for such infringement, which have yet to
`
`be determined.
`
`76. Drive’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`EIGHTH CLAIM FOR RELIEF
`
`DRIVE’S INFRINGEMENT OF U.S. PATENT N0. 7,743,767
`
`77.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`78. Drive has and continues to directly infringe the claims of the ’767
`
`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 Drive Masks.
`
`13
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`KDOO\]O\U1-I}-bJ[\.)*-*
`
`79.
`
`As a result of Drive’s infringement of the ’767 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`Drive the damages adequate to compensate for such infringement, which have yet to
`
`be determined.
`
`80. Drive’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`NINTH CLAIM FOR RELIEF
`
`APEX’S INFRINGEMENT OF U.S. PATENT NO. 6,216,691
`
`81.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`10
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`reference.
`
`12
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`82. APEX has directly infringed the claims of the ’69l 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
`
`APEX Devices.
`
`83.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’691 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 ’691 patent at least as early as the service date of this complaint.
`
`84.
`
`On information and belief, APEX has induced and continues to induce
`
`infringement of the ’69l patent by actively encouraging customers and others to
`
`import, sell and/or use the Accused APEX Devices in the United States with
`
`knowledge that such import, sale or use would infringe the ’69l patent. On
`
`information and belief, those customers and others in fact infringed the ’691 patent
`
`by importing, selling and/or using the Accused APEX Devices in the United States.
`
`85. As a result of APEX’s infringement of the ’69l patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`14
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`\OOO\lO\lJ:-l>UJl\)>-‘
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`12
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`13
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`14
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`21
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`22
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`23
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`24
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`25
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`26
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`27
`
`28
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`to be determined.
`
`86. APEX’S acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`TENTH CLAIM FOR RELIEF
`
`APEX’S INFRINGEMENT OF U.S. PATENT NO. 6,935,337
`
`87.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`88. APEX has directly infringed the claims of the ’337 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, at least APEX’S
`
`iCH Auto device.
`
`89.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’337 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 ’337 patent at least as early as the service date of this complaint.
`
`90.
`
`On information and belief, APEX has induced and continues to induce
`
`infringement of the ’337 patent by actively encouraging customers and others to
`
`import, sell and/or use APEX’S iCH Auto device in the United States with
`
`knowledge that such import, sale or use would infringe the ’337 patent. On
`
`information and belief, those customers and others in fact infiinged the ’337 patent
`
`by importing, selling and/or using APEX’S iCH Auto device in the United States.
`
`91. As a result of APEX’S infringement of the ’337 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`to be determined.
`
`1 5
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`92. APEX’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`ELEVENTH CLAIM FOR RELIEF
`
`APEX’S INFRINGEMENT OF U.S. PATENT NO. 7,614,398
`
`93.
`
`The allegations of Paragraphs 1-40 are incorporated herein by
`
`reference.
`
`94. APEX has directly infringed the claims of the ’398 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, at least the
`
`APEX’s XT Fit device.
`
`95.
`
`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. ResMed
`
`also marks its products with its patents. Therefore, on information and belief,
`
`APEX either must have known about the ’398 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 ’398 patent at least as early as the service date of this complaint.
`
`96. On information and belief, APEX has induced and continues to induce
`
`infringement of the ’398 patent by actively encouraging customers and others to
`
`import, sell and/or use APEX’s XT Fit device in the United States with knowledge
`
`that such import, sale or use would infringe the ’398 patent. On information and
`
`belief those customers and others in fact infringed the ’398 patent by importing,
`
`selling and/or using APEX’s XT Fit device in the United States.
`
`97. As a result of APEX’s infringement of the ’398 patent, ResMed has
`
`suffered and will continue to suffer damage. ResMed is entitled to recover from
`
`APEX the damages adequate to compensate for such infringement, which have yet
`
`to be determined.
`
`KOOO\]O'\U1-l>UJl\J>-‘
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`28
`
`16
`
`Case No. SACV-13-00498 CJC (RNBX)
`
`Apex Medical Corp.
`Exhibit 1002
`
`Apex Medical Corp.
`Exhibit 1002
`
`

`
`98. APEX’s acts of infringement have caused and will continue to cause
`
`irreparable harm to ResMed unless and until enjoined by this Court.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, ResMed prays that this Court enters judgment and provides
`
`relief as follows:
`
`(a)
`
`(b)
`
`(c)
`
`That APEX has directly infringed the Patents-in— Suit.
`
`That APEX has induced infringement of the Patents-in— Suit;
`
`That APEX, and its officers, agents, servants, employees, and those in
`
`active concert or participation with them directly or indirectly, be enjoined