Apple's stripping out blood oxygen sensing from Apple Watch enough to skirt import ban

AppleInsiderAppleInsider
Posted:
in Apple Watch edited January 15

Apple's software fix to disable a blood oxygen sensing feature in the Apple Watch could be enough to thwart the ITC import ban, U.S. Customs and Border Protection has determined.

Apple Watch Ultra 2
Apple Watch Ultra 2



The Apple Watch Series 9 and Apple Watch Ultra 2, among other models, are the subjects of a currently-stayed ITC import ban brought about by a Masimo patent infringement complaint. However, it seems that Apple's attempt to work around the ban with changes is enough for U.S. Customs to allow imports to continue.

A Monday Federal Circuit filing from Masimo refers to a January 12 decision by the Exclusion Order Enforcement Branch of U.S. Customs and Border Protection. The filing, spotted by 9to5Mac, explains that the branch has "decided that Apple's redesign falls outside the scope of the remedial orders in the ITC investigation underlying Apple's appeal."

As part of the request, Apple claimed "its Redesigned Watch products definitely (1) do not contain pulse oximetry functionality," the Masimo filing quotes.

However, since Apple maintained that some of the information in the proceeding is confidential, Masimo didn't provide a copy of the decision in the filing. No public release of the filing exists either.

Ultimately, Masimo's attorneys explain, the "EOE Branch decision finding the redesign outside the scope of the remedial orders would eliminate any irreparable harm alleged by Apple."

Minimal sales impact



At face value, the discussion by Masimo in the filing indicates that Apple has done something to the Apple Watch to mean the claims of patent infringement no longer apply, at least in the eyes of U.S. Customs and Border Protection.

However, it isn't explained what has changed. The discussion of a "redesign" could mean physical changes to the hardware, but that would require extensive work and resource consumption to perform in a short timeframe.

The more likely result is Apple's rumored software update, which it submitted to Customs for investigation in late December. Again, while there isn't explicit detail on what the update does, it is likely to simply disable the blood oxygen features.

To consumers, who can still buy a current-gen Apple Watch in the United States since the ITC ban is stayed for the moment, the decision won't immediately change things. Existing stocks of Apple Watch units in the country that have the feature enabled will continue to do so.

What it will affect are units imported into the United States. At that point, Apple will theoretically be selling the Apple Watch with the relevant features disabled.

Apple is highly likely to comment on the situation before it occurs.



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Comments

  • Reply 1 of 39
    Anilu_777Anilu_777 Posts: 532member
    Since the patent does not apply to Canada I sincerely and seriously hope that it’s a US only disabling of the feature. Heck - the US gets features that no-one else does or far ahead of others so it should apply in reverse. P.S. I still think Apple should buy Masimo. Problem solved. 
    chiacaladanianwatto_cobra
  • Reply 2 of 39
    tech_travellertech_traveller Posts: 46member
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.
    williamlondon
  • Reply 3 of 39
    sdw2001sdw2001 Posts: 18,016member
    tech_traveller said:
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.
    So medical devices should be exempt from intellectual property laws? I don’t think so. 

    This whole thing is about money. I know that sounds obvious, but what I mean is Apple controls the entire process. They decided it would be more cost-effective to fight it and make changes on the periphery.   They could’ve simply cut a big check to license the technology. Who knows what they want for that. Let’s say they wanted $250 million. That’s a core technology for them and the company has a market cap of a little over 6 billion. Apple likely figured that fighting it in court and making changes would cost less.  Let’s say 50 million.  Ultimately, Apple will win either way. They’re not simply going to tuck their tail between their legs and not sell the Apple Watch anymore. If push comes to shove, could buy Masimo 30 times over just with its cash-on-hand.  
    pulseimagesWhiskeyAPPLEcidernubuschiawatto_cobra
  • Reply 4 of 39
    teejay2012teejay2012 Posts: 376member
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.

    Masimo has become a bit of a troll and it seems the ITC has over reached on their decision.
    From iMore, Florian Mueller is a  patent expert and legal expert has written, “Apple sometimes engages in bullying, but the ITC’s attack is gratuitous, disingenuous and irresponsible,” noting the ITC’s own record shows that Apple created the disputed pulse oxymetry technology independently and that Masimo “tactically designed the patents-in-suit after Apple’s independent innovation, and more than 10 years after the original applications, in order to read on the relevant Apple Watch feature.”

    I think Masimo should get 'rewarded' for the trouble they have caused themselves and their shareholders LOL. They have spent 100 million on this and they only make 120 million a year in profit!



    thtwilliamlondonbloggerblogdavenchasmForumPostwatto_cobra
  • Reply 5 of 39
    thttht Posts: 5,461member
    Anilu_777 said:
    Since the patent does not apply to Canada I sincerely and seriously hope that it’s a US only disabling of the feature. Heck - the US gets features that no-one else does or far ahead of others so it should apply in reverse. P.S. I still think Apple should buy Masimo. Problem solved. 
    It’s an import ban for products going into the USA. It won’t affect Watches not sold in the USA. 

    Apple should not buy Masimo. They do not offer anything of value for Apple. I know a lot of people respond with buying out a patent troll, but all that does is reward the C-suite and major stockholders. The regular workers have a rather high risk of buying laid off. 

    Apple and Masimo are still in court over this. If Apple invalidates the patents or proves they don’t infringe, the feature comes back to US watches. In the meanwhile they will redesign the feature for future Watches. 

    I think the odds are good that Masimo will sue Apple for AirPods doing this or that. We will see. 
    dewmewilliamlondonchasmStrangeDayswatto_cobra
  • Reply 6 of 39
    tech_travellertech_traveller Posts: 46member
    teejay2012 said:
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.

    Masimo has become a bit of a troll and it seems the ITC has over reached on their decision.
    From iMore, Florian Mueller is a  patent expert and legal expert has written, “Apple sometimes engages in bullying, but the ITC’s attack is gratuitous, disingenuous and irresponsible,” noting the ITC’s own record shows that Apple created the disputed pulse oxymetry technology independently and that Masimo “tactically designed the patents-in-suit after Apple’s independent innovation, and more than 10 years after the original applications, in order to read on the relevant Apple Watch feature.”

    I think Masimo should get 'rewarded' for the trouble they have caused themselves and their shareholders LOL. They have spent 100 million on this and they only make 120 million a year in profit!



    I am not particularly sure on how Apple's implementation differs from Masimo's but the ban was only stayed because they disabled that feature. So, currently it seems that Apple did in fact 'copy' Masimo's tech.

    I must disagree that Apple created that technology independently, considering they poached talent from Masimo and applied for patents the very same week that the new staff joined, you don't develop new tech that quickly.
    williamlondoncaladanianbeowulfschmidtgatorguy
  • Reply 7 of 39
    thttht Posts: 5,461member
    tech_traveller said:
    teejay2012 said:
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.

    Masimo has become a bit of a troll and it seems the ITC has over reached on their decision.
    From iMore, Florian Mueller is a  patent expert and legal expert has written, “Apple sometimes engages in bullying, but the ITC’s attack is gratuitous, disingenuous and irresponsible,” noting the ITC’s own record shows that Apple created the disputed pulse oxymetry technology independently and that Masimo “tactically designed the patents-in-suit after Apple’s independent innovation, and more than 10 years after the original applications, in order to read on the relevant Apple Watch feature.”

    I think Masimo should get 'rewarded' for the trouble they have caused themselves and their shareholders LOL. They have spent 100 million on this and they only make 120 million a year in profit!



    I am not particularly sure on how Apple's implementation differs from Masimo's but the ban was only stayed because they disabled that feature. So, currently it seems that Apple did in fact 'copy' Masimo's tech.

    I must disagree that Apple created that technology independently, considering they poached talent from Masimo and applied for patents the very same week that the new staff joined, you don't develop new tech that quickly.
    Apple created the technology independently and it only has superficial similarities to Masimo’s patents. Superficial similarities is all you need to infringe a patent. 

    In terms of actual technology, I doubt any data was shared, and no hardware details were copied. All you need to do figure this out is to read the patents. No technology is ever revealed in a patent. None.

    I was frankly surprised Masimo’s patent had calibration data plots in it, but it is useless because it will be entirely dependent on the emitter-receptor configuration and body location. 

    The benefits of hiring experts in the field is indeed to give your planned feature the best chance of success. It cuts in all ways. Those experts can design the feature so that they don’t infringe on patents. That’s a big part of any planned feature for company like Apple. 
    teejay2012rivertripdavenchasmtenthousandthingschiaForumPostwatto_cobra
  • Reply 8 of 39
    kkqd1337kkqd1337 Posts: 429member
    The vast majority of people will have only ever used the O2 sensor once, and won't notice the removal.
    ronn9secondkox2ForumPostwatto_cobra
  • Reply 9 of 39
    kiehtankiehtan Posts: 38member
    The O2 sensor takes readings passively, so even if one doesn’t often open the app and take a reading, it’s being done in the background and syncing to Apple
    Health. And there are third party complications that will showcase the most recent reading on the watchface. 
    edited January 15 caladanianwatto_cobra
  • Reply 10 of 39
    nubusnubus Posts: 401member
    tech_traveller said:
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.
    WTO did issue a patent waiver for Covid-19 vaccines. It is possible. But blood oxygen isn't really on that level.
  • Reply 11 of 39
    teejay2012teejay2012 Posts: 376member
    tht said:
    tech_traveller said:
    teejay2012 said:
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.

    Masimo has become a bit of a troll and it seems the ITC has over reached on their decision.
    From iMore, Florian Mueller is a  patent expert and legal expert has written, “Apple sometimes engages in bullying, but the ITC’s attack is gratuitous, disingenuous and irresponsible,” noting the ITC’s own record shows that Apple created the disputed pulse oxymetry technology independently and that Masimo “tactically designed the patents-in-suit after Apple’s independent innovation, and more than 10 years after the original applications, in order to read on the relevant Apple Watch feature.”

    I think Masimo should get 'rewarded' for the trouble they have caused themselves and their shareholders LOL. They have spent 100 million on this and they only make 120 million a year in profit!



    I am not particularly sure on how Apple's implementation differs from Masimo's but the ban was only stayed because they disabled that feature. So, currently it seems that Apple did in fact 'copy' Masimo's tech.

    I must disagree that Apple created that technology independently, considering they poached talent from Masimo and applied for patents the very same week that the new staff joined, you don't develop new tech that quickly.
    Apple created the technology independently and it only has superficial similarities to Masimo’s patents. Superficial similarities is all you need to infringe a patent. 

    In terms of actual technology, I doubt any data was shared, and no hardware details were copied. All you need to do figure this out is to read the patents. No technology is ever revealed in a patent. None.

    I was frankly surprised Masimo’s patent had calibration data plots in it, but it is useless because it will be entirely dependent on the emitter-receptor configuration and body location. 

    The benefits of hiring experts in the field is indeed to give your planned feature the best chance of success. It cuts in all ways. Those experts can design the feature so that they don’t infringe on patents. That’s a big part of any planned feature for company like Apple. 

    I think you are spot on really. Hiring executives by 'poaching' using more pay, benefits ... does not incriminate any company. I don't think Apple is that stupid or arrogant to have taken trade secrets from the 2 that Apple hired. In fact given that the tech is now 80 years old, it baffles me how anyone has gotten a patent in this. However, the former Masimo executives would have know how strongly Masimo's patent position was, particularly with 'prior art'. Although the USPTO requires you to disclose any prior art that you become aware of, most companies keep a lid on such and disclose only if cited in court. Given that 13 Masimo patents have now been invalidated, and Apple is working on the remaining 2 that the ITC has focused on, it does not take much to connect the dots. I think Masimo may have created an unforced strategic error in going after Apple here. An error that could cost them their existing market leader place in hospital O2 saturation monitoring. There are many Chinese potential manufactures (who likely make Masimo's current devices) watching this space.
    williamlondonchasmtenthousandthingsStrangeDaysForumPostwatto_cobra
  • Reply 12 of 39
    danoxdanox Posts: 2,909member
    sdw2001 said:
    I am glad. Whether you like or dislike Apple, medical devices should have some exception to other product categories.

    That being said, I hope Masimo gets reimbursed for their troubles.
    So medical devices should be exempt from intellectual property laws? I don’t think so. 

    This whole thing is about money. I know that sounds obvious, but what I mean is Apple controls the entire process. They decided it would be more cost-effective to fight it and make changes on the periphery.   They could’ve simply cut a big check to license the technology. Who knows what they want for that. Let’s say they wanted $250 million. That’s a core technology for them and the company has a market cap of a little over 6 billion. Apple likely figured that fighting it in court and making changes would cost less.  Let’s say 50 million.  Ultimately, Apple will win either way. They’re not simply going to tuck their tail between their legs and not sell the Apple Watch anymore. If push comes to shove, could buy Masimo 30 times over just with its cash-on-hand.  
    15 of the 17 Masimo patents have been ruled invalid by the patent office and in the court case before a jury 6 to 1 said Apple didn't violate Masimo's patents so Apple probably feels that they are right prior art and on top of that art goes back to 1840's.

    https://www.cablesandsensors.com/pages/history-of-pulse-oximetry Prior art deep into the past.


     
    williamlondondavenchasmForumPostwatto_cobra
  • Reply 13 of 39
    macxpressmacxpress Posts: 5,818member
    I wonder if Apple will disable the feature for now to keep Apple Watch sales going in the US and keep fighting this until they win. They can always turn it back on afterwards should they end up winning. 

    Also if Apple disables this feature you can guarantee there will be a class-action lawsuit about how people bought an Apple Watch with anticipation of using the blood oxygen feature and now the can't. I guarantee you there's a scummy lawyer out there just waiting for this to happen so they can sue Apple for "damages" I'm calling this now. It's gonna happen!
    williamlondonwatto_cobra
  • Reply 14 of 39
    pulseimagespulseimages Posts: 605member
    Glad I didn’t buy an Apple Watch if they’re going to be disabling this feature. 
    williamlondon9secondkox2
  • Reply 15 of 39
    Chris_PelhamChris_Pelham Posts: 7member
    Would the feature be disabled for everyone who's already bought one of the watches or only for watches sold after the disable date?
    fred1caladanianjahbladewatto_cobra
  • Reply 16 of 39
    ApplePoorApplePoor Posts: 286member
    Doubt Apple can legally disable a feature in a "sold" item. They can not include that feature in the new ones coming off the line. That complies with what I can read.
    watto_cobra
  • Reply 17 of 39
    thttht Posts: 5,461member
    Chris_Pelham said:
    Would the feature be disabled for everyone who's already bought one of the watches or only for watches sold after the disable date?
    It would be for Apple Watches sold in the USA after the US Federal Court of Appeals makes a decision on the ITC import ban, and it would be for Watches sold in the USA after that decision. Already sold Watches will be ok. Remember, it is an import ban, not a declaration from the US Courts that Apple is infringing on a Masimo patent. The ITC is a trade commission, not a Court.

    If you want a Watch with blood oxygen saturation measurements after the shenanigans are done and Apple has removed it from US sold Watches, buy it in Canada or Mexico. It will be curious if it is geofenced, but doubtful. I don't think that would survive a court case.
    williamlondoncaladanianForumPostwatto_cobra
  • Reply 18 of 39
    mikethemartianmikethemartian Posts: 1,342member
    I love how an individual or company invests effort, time and money to develop a new technology and then has to spend more effort, time and money to patent their invention and when they try to protect their financial interests in the invention they automatically get labeled a “troll”. Propaganda 101.
    charlesnwilliamlondon9secondkox2rivertripmuthuk_vanalingamRespitegrandact73gatorguy
  • Reply 19 of 39
    charlesncharlesn Posts: 862member
    I love how an individual or company invests effort, time and money to develop a new technology and then has to spend more effort, time and money to patent their invention and when they try to protect their financial interests in the invention they automatically get labeled a “troll”. Propaganda 101.
    Exactly right. This doesn't mean Masimo is on the right side of this case, necessarily, but they are anything but a patent troll in the pulse oximeter space. And honestly, it's pretty ironic to be calling anyone a patent troll vs Apple, considering that Apple is among the most litigious companies in the world when it comes to suing others if it believes they have infringed on Apple IP. 

     I wonder if this latest maneuver, which effectively neutralizes the import ban as a cudgel to used by Masimo, is a gambit by Apple to drive a deal on its own terms with Masimo. I can't imagine Apple really wants two versions of the same watch out there in the marketplace, so I would think the "right" deal would still be attractive to them, and by showing Masimo they're ready, willing and able to get around the import ban, it leaves Masimo in a much weaker negotiating position. 
    edited January 15 rivertripChris_Pelhamgrandact73
  • Reply 20 of 39
    9secondkox29secondkox2 Posts: 2,745member
    Why wouldn’t removing the offending tech be enough. That was the crux of the whole thing. 
    watto_cobra
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