Joseph R. Re

In 20 years, noninvasive patient technology manufacturer Masimo Corp., one of Re’s oldest clients, had grown to more than 4,000 employees.

But with that growth also came an uptick in lawsuits filed by patent holding companies.

Recently, Re fended off his fourth such claimant and shared his strategy that he applies to all patent suits: never settle.

“We are very afraid that if we settle and pay out money, it would just propagate more such suits,” he said. “We have never paid out in any of our [non-practicing entity] cases and succeeded in every one of them.”

When a patent infringement claim is false, it still takes time to prove that to a judge and holding companies usually don’t want to stick around to do the heavy lifting, Re said.

Last August, Re helped earn a dismissal in a case brought on by Dominion Assets LLC over a handful of Masimo’s “Rainbow” technology, which measuring blood constituents such as Methemoglobin or Carboxyhemoglobin. Dominion Assets LLC v. Masimo Corporation et al., 14-CV3002 (N.D. Cal., filed June 30, 2014).

In March 2018, the 11th U.S. Circuit Court of Appeals held plaintiffs had no evidence of any actual injury in a case regarding Masimo’s pulse oximeters, devices used to measure oxygen saturation levels. In this specific case, the matter involved pulse oximeters in a double-blind study with premature infants.

If infants receive too much oxygenation, it can kill their optic nerves, Re said.

“For premature infants, they cannot handle full oxygenation because they go blind,” he said. “Stevie Wonder, he’s blind because of too much oxygenation at birth.”

“Needless to say, premature infants have incidents of death, mental retardation, other types of disabilities and so when the study was conducted many of the parents of the children sued Masimo and the hospitals and the doctors conducting the study,” Re added. “They claimed that Masimo modified the product in such a way that caused harm to these infants.”

The modification was an alarm to alert doctors if the oxygenation fell out of the range of 85 to 90 percent, Re said.

But in the end, the plaintiffs couldn’t up come up with the necessary evidence to prove their claims.

“We showed that those modifications in no way could have caused any harm to the patient whatsoever,” Re said.

— Arin Mikailian