US ITC Bans Apple Watch Imports

[jordank195]

 

Summary

 
The U.S.
International Trade Commission decided Thursday that the Apple Watch infringes two Masimo Corp. patents on technology for measuring oxygen in the blood, and issued an order barring the popular device from being imported into the U.S.

The White House has 60 days to decide whether to veto an ITC decision, and Apple can continue importing its products during the review period. If the exclusion order is left in place, the Apple Watch can no longer be imported.

 

 

Quotes

Quote

 

The U.S. International Trade Commission (ITC) on Thursday issued an order that could bar Apple from importing its Apple Watches after finding the devices violate medical technology company Masimo's  patent rights.

The full commission upheld a judge's ruling from January that Apple violated Masimo's rights in light-based technology for reading blood-oxygen levels.

The decision will not have an immediate effect since it now faces presidential review and possible appeals.

President Joe Biden's administration will have 60 days to decide whether to veto the import ban based on policy concerns before it goes into effect. Presidents have rarely vetoed bans in the past.

 

My thoughts

 
While it is rare for a presidential veto overruling the ITC, Apple has had previous success. The Obama administration vetoed the ban of iPhones after the Samsung patent case, so this isn’t Apple’s first rodeo. I wouldn’t necessarily expect Apple Watches to disappear in the US any time soon.

 

Sources

 Reuters - https://www.reuters.com/technology/us-trade-tribunal-issues-potential-apple-watch-import-ban-masimo-patent-fight-2023-10-26/

[leadeater]

1 hour ago, jordank195 said:

International Trade Commission decided Thursday that the Apple Watch infringes two Masimo Corp. patents on technology for measuring oxygen in the blood, and issued an order barring the popular device from being imported into the U.S.

So what about all the other fitness tracker watches etc from the hundreds of other brands?

 

I smell marketing attempt, because who the hell is Masimo Corp.

[TetraSky]

37 minutes ago, leadeater said:

I smell marketing attempt, because who the hell is Masimo Corp.

I don't think Masimo needs marketing, considering their target audience is not the general public (unless you consider their one product for Opioids addicts, which frankly sounds like snake oil, but who am I to judge. Maybe it does work).

They've been in business for as long as I've been alive, too.

https://en.wikipedia.org/wiki/Masimo

 

Their own press release : 

https://www.masimo.com/company/news/news-media/#United_States_International_Trade_Commission_Issues_Exclusion_Order_for_Infringing_Apple Watches_Finding_that_Apple_Violated_U.S._Trade_Laws

 

I'll be honest, I was 10000% expecting them to be patent trolls who didn't do anything with this tech. But they might have a case. Then again, nearly every smart watches use this type of light pulse tech for this purpose as well... Even my cheapo Band 7 from Xiaomi.

 

Quote

In its comment submitted to the ITC, the Consumer Federation of America stated, “There is no greater offense to both the antitrust and intellectual property law than when a dominant firm infringes the patent of a smaller rival, who is an actual or potential competitor. In this case, as in the other cases involving Apple’s egregious abuse of market power, the harms far outweigh the benefit. In fact, because competition will swiftly replace any services or products that Apple is no longer able to deliver because of the remedy, there will be little harm and a great deal of benefit for consumers and the economy.” 

They aren't wrong, but at the same time they are admitting the ban is useless since alternatives already exist. Cool.

[leadeater]

41 minutes ago, TetraSky said:

I don't think Masimo needs marketing, considering their target audience is not the general public

Oh they do, they have a consumer watch released in 2022.

 

 

https://www.mddionline.com/digital-health/masimo-launches-health-watch-consumers-limited-basis

 

Odds are, sales are low, nobody knows they have it on the market and this is a good way to increase awareness.

 

41 minutes ago, TetraSky said:

They aren't wrong, but at the same time they are admitting the ban is useless since alternatives already exist. Cool.

Exactly, so there is another motive to this than patent infringement, because they didn't do anything at all for years until they had their own product. A very clear issue when it comes to patient law since if you are shown to not be protecting it then that is legal grounds to either forfeit that IP or the right to protect it.

 

"You only cared after you released a competing product in to the market" - Case dismissed. And no I don't' actually think that's how it will go but that is actually how it is supposed to go.

 

Failure to defend your patient for at a minimum 3 years is not a good look, legally or not. You don't knowingly allow multiple brands before Apple infringing the very same patient for years and then suddenly start caring when you want to now compete with a similar product.

 

So I have zero sympathy for Masimo here.

Edited October 27, 2023 by leadeater

[StDragon]

1 hour ago, leadeater said:

I smell marketing attempt, because who the hell is Masimo Corp.

That's one way of looking at it. Another would be to set a legal precedent and sue all the other vendors violating the patent.

My guess is they want to settle with royalties and/or cross licensing other tech from Apple into their own watch.

[leadeater]

3 minutes ago, StDragon said:

That's one way of looking at it. Another would be to set a legal precedent and sue all the other vendors violating the patent.

My guess is they want to settle with royalties and/or cross licensing other tech from Apple into their own watch.

A better way would be I don't know, go after the first offence when it happened...

 

Quote

The new device also marks the first time Fitbit has included an SpO2 sensor in one of its wearables.

 

The technology is relatively rare outside of medical equipment, although Nokia does include an SpO2 sensor in its Pulse Ox wristband.

Fitbit, https://www.bbc.com/news/technology-41082953 (2017)

 

[StDragon]

13 minutes ago, leadeater said:

A better way would be I don't know, go after the first offence when it happened...

 

Fitbit, https://www.bbc.com/news/technology-41082953 (2017)

 

*snip*

Is it known if they're already paying royalties by Fitbit to Masimo? Maybe they worked out some deal?

From what I see many of their patents go back to 2007 and 2011. I haven't checked them all, but it's a lengthy list. You can plug them in at the URL below to look them up. Either way, I don't think "Prior Art" qualifies. I think Apple is screwed.

 

 https://ppubs.uspto.gov/pubwebapp/static/pages/ppubsbasic.html

U.S. Patents: 7295866, 7471969,  7865222, 7880606, 7988637, 7990382, 8046040, 8185180, 8190223, 8203438, 8265723, 8280473, 8337403, 8353842, 8405608, 8414499, 8457703, 8483787, 8532728, 8560032, 8626255, 8652060, 8676286, 8718735, 8790268, 8847740, 8929964, 8983564, 9084569, 9131882, 9167995, 9192329, 9307928, 9370326, 9549696, 9724016, 9724024, 9775570, 9808188, 9839381, 9848806, 9861305, 10064562, 10092200, 10098550, 10194847, 10219746, 10258265, 10292628, 10299708, 10376190, 10448871, 10470695, 10595747, 10582886, 10588553, 10588554, 10610138, 10617338, 10624563, 10624564, 10631765, 10687745, 10702194, 10702195, 10758166, 10912501, 10912502, 10945648, 11399722, 11484229, 11484230, 11581091, RE47218, RE47882
 

[leadeater]

11 minutes ago, StDragon said:

Is it know if they're already paying royalties by Fitbit to Masimo? Maybe the worked out some deal?

From what I see many of their patents go back to 2007 and 2011. I haven't checked them all, but it's a lengthy list. You can plug them in at the URL below to look them up. Either way, I don't think "Prior Art" qualifies. I think Apple is screwed.

 

 https://ppubs.uspto.gov/pubwebapp/static/pages/ppubsbasic.html

U.S. Patents: 7295866, 7471969,  7865222, 7880606, 7988637, 7990382, 8046040, 8185180, 8190223, 8203438, 8265723, 8280473, 8337403, 8353842, 8405608, 8414499, 8457703, 8483787, 8532728, 8560032, 8626255, 8652060, 8676286, 8718735, 8790268, 8847740, 8929964, 8983564, 9084569, 9131882, 9167995, 9192329, 9307928, 9370326, 9549696, 9724016, 9724024, 9775570, 9808188, 9839381, 9848806, 9861305, 10064562, 10092200, 10098550, 10194847, 10219746, 10258265, 10292628, 10299708, 10376190, 10448871, 10470695, 10595747, 10582886, 10588553, 10588554, 10610138, 10617338, 10624563, 10624564, 10631765, 10687745, 10702194, 10702195, 10758166, 10912501, 10912502, 10945648, 11399722, 11484229, 11484230, 11581091, RE47218, RE47882

Who knows, would be hard to find out. But I highly doubt they all are, and the number of huge massive brands on the market with the same sensor type and it's only Apple would be exceedingly unlikely.

 

Not sure what you mean by prior art, which is about invalidating a patent which is not what I am saying, but when it comes to patient law it's literally required to defend your patient or it is voided. So if Masimo has been allowing it to be infringed unopposed since at least 2017 by two different companies then their case is terrible.

 

Quote

REPERCUSSIONS OF PATENT NON-ENFORCEMENT
If you do not enforce your rights against parties infringing on your patent, you put your protected work in danger. The primary consequence of not enforcing your patent is losing your exclusive rights.

https://www.ptslaw.com/patent-law/can-you-choose-not-to-enforce-your-patent/

 

Quote

You Can Lose Your IP Rights if Not Enforced
If you don’t take adequate or sufficient, reasonable means to protect and enforce your IP, then you run the risk of losing your IP rights. What is sufficient and reasonable action is not always clear; it depends on the situation. But, suffice it to say, if you know someone is using your IP without your authorization, you should promptly look into it to determine what, if anything, should and needs to be done so that you don’t lose one of your most important business assets – your valuable intellectual property.

https://www.varnumlaw.com/insights/enforce-your-intellectual-property-or-risk-losing-it/

[leadeater]

@StDragon Seems the real dispute is that a Masimo employee left for Apple.

[StDragon]

4 minutes ago, leadeater said:

@StDragon Seems the real dispute is that a Masimo employee left for Apple.

Juicy!

Retaliation over poaching won't go very far if they haven't been defending the patent earlier as you've said. But again, not sure if there was some deal with Fitbit whereas it's not with Apple.

[leadeater]

44 minutes ago, StDragon said:

Juicy!

Retaliation over poaching won't go very far if they haven't been defending the patent earlier as you've said. But again, not sure if there was some deal with Fitbit whereas it's not with Apple.

I guess it depends exactly what the patent is, might not be just anything that measures bloody O2 with light sensors which is why it's only Apple.

 

Because Samsung, Nokia, Fitbit, Huawei etc also all have O2 capable watches

[circeseye]

im guessing my samsung watch has the same sensor since it does exactly the same thing apple and fitbits watches do. unless both use a completely different sensor then apple. thats a possibility

[porina]

4 hours ago, StDragon said:

Retaliation over poaching won't go very far if they haven't been defending the patent earlier as you've said.

Patents are different from trademarks in that respect. Trademarks are "use it or lose it", but I'm not aware that applies to patents. 

[williamcll]

Can't Apple go to court with this?

[darknessblade]

If apple wants to ban devices from their competitors from fbeing imported that violate "THEIR" patents

https://www.cnet.com/tech/tech-industry/apple-fails-in-bid-for-emergency-import-ban-of-htc-phones/

https://appadvice.com/appnn/2010/01/apple-gets-back-at-nokia-requests-us-import-ban-on-nokia-phones

 

They should not complain if the same happens to them when they violate a patent.

 

 

 

[Fasterthannothing]

On 10/26/2023 at 8:33 PM, leadeater said:

So what about all the other fitness tracker watches etc from the hundreds of other brands?

 

I smell marketing attempt, because who the hell is Masimo Corp.

Who is Masimo? Is that a serious question they are a huge company with patents far and wide for these type of sensors. I highly doubt Apple wins this one and it really could be the end of Apple watches.

[leadeater]

6 hours ago, Fasterthannothing said:

Who is Masimo? Is that a serious question they are a huge company with patents far and wide for these type of sensors. I highly doubt Apple wins this one and it really could be the end of Apple watches.

They aren't that big, and considering I have very close ties to medical industry and never encountered their name suggest they are more regionally known. Not that strange considering many names here are not well known.

 

Other than the employee dispute I don't see Masimo having any leg to stand on, they'll have to prove that employee actually handed over trade secrets or Apple's exact implementation is infringing which is not a trivial thing to do since Apple isn't/hasn't given out how and won't even have to in court other than to refute any specific claims. 

 

It's on the accuser here to prove the infringement and that actually isn't easy to do. 

 

Masimo does not have exclusive patent over all SpO2 sensors that use light.

 

And this is not the first go around at this

Quote

May 1 (Reuters) - A U.S. judge in California on Monday declared a mistrial in Masimo Corp's (MASI.O) smartwatch trade secret lawsuit against Apple Inc (AAPL.O) after jurors failed to reach a unanimous verdict in the potential billion-dollar case.

 

Quote

The lawsuit claimed Masimo representatives met with Apple in 2013 about integrating its inventions into Apple products and that Apple subsequently hired away two executives - one from Masimo and one from Cercacor - and used their knowledge to copy the technology.

 

Masimo asked for more than $1.8 billion in damages, reduced from its initial request for $3.1 billion after the judge dismissed some of its trade-secret claims during trial.

https://www.reuters.com/legal/us-judge-declares-mistrial-apple-masimo-smartwatch-trade-secrets-fight-2023-05-01/

[Kisai]

On 10/26/2023 at 8:08 PM, leadeater said:

I guess it depends exactly what the patent is, might not be just anything that measures bloody O2 with light sensors which is why it's only Apple.

 

Because Samsung, Nokia, Fitbit, Huawei etc also all have O2 capable watches

Garmin's fitness trackers also have them.

 

On 10/28/2023 at 6:29 PM, leadeater said:

They aren't that big, and considering I have very close ties to medical industry and never encountered their name suggest they are more regionally known. Not that strange considering many names here are not well known.

I'll let you in on a not-so-secret. Look at eBay and go look up any specific keyword about smartwatches before they were smart watches. Like "GPS watch" or "GSM watch" or something like that. A lot of this stuff existed WELL before smartwatches. 

 

Perhaps the exact tech in this patent is different, but the idea of SOMETHING THAT HAS NEVER BEEN DONE BEFORE, basically not a thing. What we would call a smartwatch has existed since at least 1995, before USB and IrDA were available technologies. The pulse oximeter "tech" that is being used by smartphones is 50 years old.

 

The reference to Masimo on Wikipedia under Pulse oximetry has been there since at least 2012.

 

On 10/28/2023 at 6:29 PM, leadeater said:

Other than the employee dispute I don't see Masimo having any leg to stand on, they'll have to prove that employee actually handed over trade secrets or Apple's exact implementation is infringing which is not a trivial thing to do since Apple isn't/hasn't given out how and won't even have to in court other than to refute any specific claims. 

 

It's on the accuser here to prove the infringement and that actually isn't easy to do. 

 

Masimo does not have exclusive patent over all SpO2 sensors that use light.

 

And this is not the first go around at this

 

https://www.reuters.com/legal/us-judge-declares-mistrial-apple-masimo-smartwatch-trade-secrets-fight-2023-05-01/

 

Yeah, I'm less interested in Apple winning here so much as maybe invalidating the patent. It suggests to me that SpO2 sensors found in smartwatches are closer to the "finger tip" thing you find in hospitals that has been around since the 80's. Rather than any new innovation. LED's, yes, have innovated, but that's not the Pulse Oximeter category, that's just software that let's it work, and miniaturization of LED's is what lets it fit on a wrist-worn device. That's not any kind of innovation. Surface mount LED's have been around for at least a decade that are cheap enough that can do this.

 

From (what looks like a marketing page) explains it simpler:

https://www.led-professional.com/products/featured/measuring-the-oxygen-content-of-blood-with-leds (from 2019)

Quote

Pulse oximeters can use two different measurement methods to detect the oxygen content in the blood: transmissive oximetry passes two wavelengths of light through a body part, for example a fingertip or earlobe. Reflective oximetry is used in fitness trackers or smart watches. Both methods measure the oxygen content in the blood on the basis of two basic principles: First, they distinguish between oxygen-rich oxyhaemoglobin (HbO₂) and oxygen-poor deoxyhaemoglobin (Hb), and then they detect the oxygen saturation only in the arterial blood.

Different absorption spectra of the blood components

Pulse oximeters take advantage of the fact that red and infrared light is absorbed differently by oxygen-rich and oxygen-poor blood: HbO₂ absorbs more infrared light and less red light than Hb. Due to the higher reflection of red light it appears bright red. By contrast, Hb absorbs more red light and thus appears darker.

 

Transmissive pulse oximetry usually uses a red LED in the range of about 650 nm and an IR LED in the range of about 900 nm. Both LEDs screen a fingertip and a phototransistor on the other side captures the relative amount of absorbed red and IR light. A micro-controller then determines the proportion of Hb and HbO2 and calculates the oxygen content from the measured parameters. In fact, only the arterial blood is of interest. With pulse oximetry it is possible to detect the oxygen content only of arterial blood. This is based on the fact that the amount of absorbed red and infrared light varies with every heartbeat due to the pulsating changes in blood volume. By contrast, veins, bones and tissue show relative constant absorption characteristics.

...

With a current of IF=20mA a typical luminous intensity of 130 mcd is achieved. In combination with a good phototransistor this results in a high signal-to-noise ratio. In order to obtain a good signal-to-noise ratio with the IR LED as well, it should have about twice the luminous intensity of the red LED in this application.

Or if you prefer a paper:

https://www.sciencedirect.com/science/article/pii/S2405959516301205 (from 2016)

Quote

In the reflective mode, the light sources and photodiode are on the same side, and light is reflected to the photodiode across the measurement site.

Currently, the transmissive mode is the most commonly used method because of its high accuracy and stability. Nevertheless, the demand for reflective-mode oximetry is continuously increasing because it does not require a thin measurement site. It can be used at diverse measurement sites such as the feet, forehead, chest, and wrists. In particular, if the wrist is the available measurement site, pulse oximeters can be conveniently used in the form of a band or watch. To the best of our knowledge, reflectance pulse oximetry, specifically for monitoring oxygen saturation at the wrist, is currently not practiced clinically. 

 

I seem to recall when the Apple watches were first rolled out, they were not allowed to be used for medical uses, and this probably still remains partially true, you probably would not want to rely on a "fitness toy" to diagnose a medical problem. But if you just want to see how hard your workout is, it's fine.

 

[leadeater]

19 minutes ago, Kisai said:

I'll let you in on a not-so-secret. Look at eBay and go look up any specific keyword about smartwatches before they were smart watches. Like "GPS watch" or "GSM watch" or something like that. A lot of this stuff existed WELL before smartwatches. 

They didn't do blood O2 though, there were lots of fitness products that did heartrate etc but measuring blood O2 in this way is relatively new compared to all the other ways.

 

19 minutes ago, Kisai said:

The pulse oximeter "tech" that is being used by smartphones is 50 years old.

 

19 minutes ago, Kisai said:

It suggests to me that SpO2 sensors found in smartwatches are closer to the "finger tip" thing you find in hospitals that has been around since the 80's.

Just be really careful when making guess and insinuations about something being around for a long time. Pulse Oximeter just means measuring heart rate and blood oxygen levels and not the specific method. We have been able to do this for a very long time however it has required direct contact with pressure and intense light, whereas all devices like smart watches require neither to measure both of these and it actually is fairly new technology on how to do that.

 

Athletes used to wear chest strapped monitors for pulse and breathing but they could never do blood oxygen which is vitally important, this was back in very late or early 2000's when my aunt was training to do the Iron Man. 

 

Older style finder clip sensors always, or should always, come with this warning.

Quote

SpO2 measurements may be adversely affected in the presence of high ambient light. Shield the sensor area if necessary

Which isn't a problem for smart watches since the way they do it is different.

 

So I don't think it's necessary to invalidate  Masimo's patent here, or at least whoever was the first to develop this specific way of doing it without the prior requirements of a for example a finger clip and very strong light (comparative to smart watch).

[Kisai]

8 hours ago, leadeater said:

 

Which isn't a problem for smart watches since the way they do it is different.

 

So I don't think it's necessary to invalidate  Masimo's patent here, or at least whoever was the first to develop this specific way of doing it without the prior requirements of a for example a finger clip and very strong light (comparative to smart watch).

Again, my point was that there isn't really a difference in how this is achieved. If their patent was for "reflective" rather than the transmissive version, that doesn't mean the transmissive version is worse, no in fact it's better. It's just isn't suitable for a wristwatch because of the nature of how a wristwatch is worn. If they were to block it, they could just turn off the LED's and then put the function on a bluetooth transmissive one that has to be worn on the ear, or a finger tip. Problem solved. Stupid, but solved.

 

Which is why I don't think there could really be a patent that covering specifically a less-accurate, but marketed at a medical use-case sensor. Those seem to be mutually exclusive, Either Masimo is trying to claim Apple is using a sensor method it's not using, or Masimo isn't selling what they say they sell.

 

[HenrySalayne]

On 10/30/2023 at 3:48 PM, Kisai said:

I seem to recall when the Apple watches were first rolled out, they were not allowed to be used for medical uses, and this probably still remains partially true, you probably would not want to rely on a "fitness toy" to diagnose a medical problem. But if you just want to see how hard your workout is, it's fine.

Maybe this answers the question how "smart watches" actually work:

 

[CarlBar]

23 hours ago, Kisai said:

Which is why I don't think there could really be a patent that covering specifically a less-accurate, but marketed at a medical use-case sensor. Those seem to be mutually exclusive, Either Masimo is trying to claim Apple is using a sensor method it's not using, or Masimo isn't selling what they say they sell.

 

 

In general stuff for medical use has to go through a long complex vetting process for approvals. Even if apple was directly, (and legally), buying medical grade sensors from masimo, unless they put the apple watch through that same process to confirm the entire package conforms to medical standards they couldn't market it for medical use.

 

Based on the video above i'd assume it's a mixture of software methodology and maybe the specific wavelengths of each light colour that form the basis for their patent.

[Issac Zachary]

So Apple first says it want's to colaborate with Masimo, but instead offers Masimo's employees double the pay and free Apple stock for signing up to work for Apple and then files a patent under the name of one of the ex-employees of Masimo for the very tech Masimo says they have their own patents on... 

 

I'm sorry, but this bothers me. I feel like getting rid of my only Apple product that I own, even if it is a 10-year-old iPad Mini.

[HumdrumPenguin]

11 hours ago, Issac Zachary said:

So Apple first says it want's to colaborate with Masimo, but instead offers Masimo's employees double the pay and free Apple stock for signing up to work for Apple and then files a patent under the name of one of the ex-employees of Masimo for the very tech Masimo says they have their own patents on... 

 

I'm sorry, but this bothers me. I feel like getting rid of my only Apple product that I own, even if it is a 10-year-old iPad Mini.

I haven't really read through much, but if this is true, then Apple needs to get **ed. It's crystal clear they knew they were infringing a patent.

[suicidalfranco]

No, no, guys. Stop acting like apple haters. Clearly Masimo is only a patent troll cause apple can never do wrong. Apple is the perfect company, a shinning beacon of light in an industry filled with copycats and patent trolls.

Masimo clearly stoled the idea from apple who had it in the works probably a decade earlier than everyone else cause Apple is so innovative and so much in the future compared to the rest of the evil companies.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/S