In an Advisory Opinion issued on August 11, 2014 in Certain Sleep-Disordered Breathing Treatment Systems, Inv. No. 337-TA-879, the Commission found the Supreme Court’s holding inMedtronic v. Mirowski, 134 S. Ct. 843 (2014), that the burden of proving infringement in a declaratory judgment action remains with the patent owner, does not apply to an Advisory Opinion Proceeding (“APO”) under Commission Rule 210.79.  The Commission reversed the ALJ’s decision to place the burden of proving infringement on the patentee, ResMed, in view of the Supreme Court’s decision in Medtronic, in the APO requested by Apex.  The Commission adopted, with modified reasoning, the ALJ’s findings that Apex’s redesigned iCH humidifier is covered and Apex’s redesigned WIZARD 220 is not covered by the Consent Order and reversed the ALJ’s finding that Apex’s redesigned XT humidifier is covered by the Consent Order issued by the Commission in the underlying investigation.  The Commission distinguished the Supreme Court’s legal and practical considerations on the burden of proof issue, finding, inter alia, that “in APOs, the patent owner is not necessarily in a better position to bear the burden of proof because the issues of patent scope and infringement of the original, accused products usually have already been determined in the underlying investigation.  In such cases, the respondents are able to point out, how and why their redesign is different from the litigated products and does not infringe.”