A Medical Device Daily

Masimo (Irvine, California), a developer of pulse oximetry technology, reported that it has settled pending litigation brought by Shaklee (Pleasanton, California) and NIR Diagnostics (Campbellville, Ontario), a developer of spectroscopic medical diagnostics, against Masimo.

Pursuant to the settlement, Shaklee and NIR dismissed all outstanding claims against Masimo in the litigation with prejudice, and Masimo dismissed all outstanding claims against Shaklee and NIR without prejudice. The settlement was reached without Masimo incurring any liability to either Shaklee or NIR.

Masimo said Shaklee filed suit in July 2007, alleging that Masimo violated proprietary calibration technology used in Shaklee's pulse oximeters — sensors placed on the ear or fingertip that measure the oxygen levels in the blood of a patient. NIR Diagnostics later joined that suit, and the companies sought injunctions and damages.

On Aug. 13, Masimo and Shaklee filed a joint stipulation dismissing the litigation with the U.S. District Court for trhe Central Distrrict of California, which the court then entered as an order; and, on Aug. 22, Masimo and NIR filed a joint stipulation dismissing the litigation with the court, which then was entered as an order.

The asserted patents were licensed by NIR Diagnostics to Shaklee under a license agreement dated Aug. 9, 2006.

The settlement agreement was reached on the eve of the expiry date of Shaklee rights that were required to settle the claim. NIR Diagnostics advised Shaklee that the commitment made in its settlement not to fund NIR Diagnostics' continued litigation against Masimo was a breach of its license agreement. Shaklee disputed that a breach occurred.