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Fisher & Paykel Healthcare may appeal German ruling on Resmed

Fisher & Paykel Healthcare is considering whether to appeal a ruling by the Regional Court in Munich that rival ResMed did not infringe its patents in the continuing intellectual property dispute for its face and nasal masks.

Auckland-based F&P Healthcare said the court ruled its German utility model patent DE 20 2013 012 358 U1 was not infringed upon and "the company is considering whether to appeal this decision." It did not specify what products were involved. In a separate release, however, California-based Resmed said the court had ruled its AirSense 10, AirCurve 10, Lumis and their humidifiers do not infringe an F&P Healthcare German utility model.

F&P Healthcare said a further case is before the same court regarding its European patent number EP 2 116 271 against the same ResMed products. A decision on this patent is expected during 2018.

In the UK, meanwhile, ResMed agreed to revoke two UK patents and a trial is currently underway to consider revocation of a third ResMed patent and ResMed's counterclaim for infringement, F&P Healthcare said. A decision on this patent is expected before the end of the year.

These are the same three patents asserted by ResMed in Germany and are subject to opposition proceedings filed by F&P Healthcare in the European Patent Office, the company added.

Last year, ResMed filed a patent infringement complaint in the Southern District of California as well as lawsuits in Germany and New Zealand, and to the US International Trade Commission against F&P Healthcare in relation to face and nasal masks, just days after the Kiwi company filed its own patent infringement lawsuit against the US company in the US District Court for the Central District of California relating to its flow generator products and masks.

In its annual report, F&P Healthcare said "we have taken advice from leading patent litigation experts around the world, remain confident in our infringement and validity positions with respect to our own patents, and believe we have good and valid defences to the claims filed by ResMed." It said it had absorbed pre-tax patent litigation costs of $20.7 million during the year to March 31 and it expects to incur litigation-related expenses at a similar run-rate during the 2018 financial year.

F&P Healthcare shares were down 0.8 per cent at $12.56 but are up 49 per cent so far this year.

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