President Biden upholds potential Apple Watch ban

AppleInsider · February 21, 2023 5:08PM

President Biden has decided not to block a possible Apple Watch import ban which can go ahead if AliveCor can overturn a previous ruling that its patents in question are invalid.

AliveCor has told AppleInsider that it has been informed that the International Trade Commission (ITC) ruling in its favor has been cleared by the White House. President Biden has therefore chosen not to block the pending ITC ruling that Apple infringes on AliveCor's patents with the ECG features in the Apple Watch.

Apple previously won its claim that three of the patents should be invalidated, which would render the ITC ruling moot. Enforcement of the ban is awaiting the conclusion of AliveCor's appeal of the invalidation.

In the meantime, the ITC issued the Limited Exclusion Order (LEO) on the Apple Watch on December 22, 2022, which called for a ban on Apple Watch sales. The LEO was sent to the White House, which had 60 days to back or block the decision.

"We applaud President Biden for upholding the ITC's ruling," AliveCor CEO Priya Abani said in a statement to AppleInsider, "and holding Apple accountable for infringing the patents that underpin our industry-leading ECG technology."

"This decision goes beyond AliveCor," she continued, " and sends a clear message to innovators that the US will protect patents to build and scale new technologies that benefit consumers."

AliveCor therefore says that the ITC's ban can go into effect "upon favorable resolution of appeals in the case" with the US Patent Trial and Appeal Board. The company also notes that the ITC's decision is separate from an antitrust suit it has filed against Apple, which is expected to go to trial in early 2024.

Apple believes that the patent board's decision to invalidate certain of AliceCor's patents is significant. Despite President Biden's decision not to block the ITC's ruling, that ruling cannot be applied until the patent decision appeal is concluded.

The company also told AppleInsiderthat the evidence it has already provided the ITC makes a case that a ban would be against the public interest.

According to AliveCor, the White House will not comment further on the ITC's LEO.

Updated: 2:55 PM ET with Apple's position.

Read on AppleInsider

daalseth · February 21, 2023 6:42PM

More accurately Biden did not get involved preemptively. The case will drag out for a long time. No reason for him to do anything until the dust has settled.

darelrex · February 21, 2023 7:28PM

"We applaud President Biden for upholding the ITC's ruling," AliveCor CEO Priya Abani said in a statement to AppleInsider, "and holding Apple accountable for infringing the patents that underpin our industry-leading ECG technology."

I haven't studied these patents myself, but I've heard that people who have say it's nothing more than a patent on the very idea of using ECG in conjunction with a smartwatch. It's not "industry-leading ECG technology." ECG is an incredibly simple technology that's been around since before anyone alive today was even born.

AliveCor was probably hoping for a juicy settlement, but Apple chose to fight it. The patents have already been invalidated, and now it's just a question of whether the appellate forum agrees with that invalidation.

teejay2012 · February 21, 2023 8:38PM

AliveCor is going after Apple for ECG on a watch because the infringement here is somehow unique to Apple who stole a unique idea? I am not seeing it. Are they then going after Google Pixel, Samsung Galaxy, Fitbit Sense, Withing Scan and other models, Huawei GT and Garmin watches? I likely have missed other smart watches with ECG but the concept can hardly be called inventive if everyone is already doing this. Perhaps AliveCor thought the patent would stand and that Apple would settle with a royalty...

viclauyyc · February 21, 2023 9:05PM

These paper invention patent need to be stop. If I file a flying car patent doesn’t mean I know how to make one.

These companies pretty much just combine a known technology with another object and hope someone like apple actually makes it into a popular product then sue for money. I should file a patent about smart shoes with ECG and hope Nike makes it into a thing.

jdw · February 21, 2023 9:52PM

This shows why frivolous lawsuits continue. Even the Whitehouse cannot see the sad situation for what it is. "Oh, a small firm is filing a patent lawsuit? We must protect the LITTLE GUY by not intervening in this fight!" Or so they tell themselves at the Whitehouse. No one in power cares at all that these sort of lawsuits, so often filed in EAST TEXAS (which supports patent trolls), are often without merit from tiny companies who are not innovating but instead seeking a financial reward. And the fact that nothing ever changes proves that the American people themselves are complicit in all this because nobody is screaming to have the situation changed except some of us in an AppleInsider forum.

It's totally and utterly beyond belief.

lkrupp · February 21, 2023 11:08PM

President Biden upholds potential Apple Watch ban

Yeah, uh huh, right. When ChatGPT actually makes sense, and pigs fly.

mknelson · February 22, 2023 12:42AM

viclauyyc said:

These paper invention patent need to be stop. If I file a flying car patent doesn’t mean I know how to make one.

These companies pretty much just combine a known technology with another object and hope someone like apple actually makes it into a popular product then sue for money. I should file a patent about smart shoes with ECG and hope Nike makes it into a thing.

AliveCor has several products and even produced an ECG device for early iPhone models.

They also discussed this technology with Apple so have a decent case that Apple "stole" the concept. That's why Apple has had to work hard to get the patents thrown out.

crofford · February 22, 2023 1:50AM

The only way this gets resolved is if Biden sits down with all parties and analyzes the patent paperwork line by line. Clearly he's the only person capable of understanding the complexity of patent law and with the appropriate people skills to get each side to be comfortable with his well thought out solution. It's so nice to finally have technical and people skills in one person that can successfully lead us through such complex times.

edited February 2023

fastasleep · February 22, 2023 2:06AM

crofford said:

The only way this gets resolved is if Biden sits down with all parties and analyzes the patent paperwork line by line. Clearly he's the only person capable of understanding the complexity of patent law and with the appropriate people skills to get each side to be comfortable with his well thought out solution. It's so nice to finally have technical and people skills in one person that can successfully lead us through such complex times.

^ Imagine thinking this is how the Office of the President works

williamh · February 22, 2023 2:21AM

teejay2012 said:

AliveCor is going after Apple for ECG on a watch because the infringement here is somehow unique to Apple who stole a unique idea? I am not seeing it. Are they then going after Google Pixel, Samsung Galaxy, Fitbit Sense, Withing Scan and other models, Huawei GT and Garmin watches? I likely have missed other smart watches with ECG but the concept can hardly be called inventive if everyone is already doing this. Perhaps AliveCor thought the patent would stand and that Apple would settle with a royalty...

The strategy is to get one big win. With that win, the other "infringers" will fall in line and pay.

danox · February 22, 2023 7:23AM

williamh said:

teejay2012 said:

AliveCor is going after Apple for ECG on a watch because the infringement here is somehow unique to Apple who stole a unique idea? I am not seeing it. Are they then going after Google Pixel, Samsung Galaxy, Fitbit Sense, Withing Scan and other models, Huawei GT and Garmin watches? I likely have missed other smart watches with ECG but the concept can hardly be called inventive if everyone is already doing this. Perhaps AliveCor thought the patent would stand and that Apple would settle with a royalty...

The strategy is to get one big win. With that win, the other "infringers" will fall in line and pay.

That’s the theory, but as of today, the patents are not even valid.

davidw · February 22, 2023 1:16PM

mknelson said:

viclauyyc said:

These paper invention patent need to be stop. If I file a flying car patent doesn’t mean I know how to make one.

These companies pretty much just combine a known technology with another object and hope someone like apple actually makes it into a popular product then sue for money. I should file a patent about smart shoes with ECG and hope Nike makes it into a thing.

AliveCor has several products and even produced an ECG device for early iPhone models.

They also discussed this technology with Apple so have a decent case that Apple "stole" the concept. That's why Apple has had to work hard to get the patents thrown out.

AliveCor has no case at all, not without any valid patents. Apple got the patents invalidated when the Patent Office ruled that the concepts behind the patents were unpatentable, because they were obvious. And Apple had shown that they had done research on the concepts in 2008, before AliveCor was even founded. Others had also done researched on the concepts, even before Apple. That's how "obvious" AliveCor patents were. Tough to prove that Apple "stole" the ideas behind the patents from Alivecor, when Apple and others knew about them, before AliveCor was founded in 2011. Apple didn't have to work hard at all, to invalidate AliveCors patents.

https://www.fiercebiotech.com/medtech/apple-wins-battle-patent-war-alivecor-over-portable-ecg-tech

https://telecareaware.com/alivecor-loses-patent-office-ruling-with-apple-on-three-patents/

>The term ‘unpatentable’ is used when the PTAB deems the patent, even when granted in the past, too obvious or too general. When the PTAB finds that, they throw out the patent and it is no longer valid.<

This is no longer a court case. The courts has no right to overturn the Patent Office decision to invalidate a patent. Even after the patent was granted.

https://www.eff.org/deeplinks/2018/04/supreme-court-upholds-patent-office-power-invalidate-bad-patents

Here's a much more detail article on AliveCor uphill battle from here.

http://www.fosspatents.com/2023/02/alivecors-patent-litigation-against.html

edited February 2023

larryjw · February 22, 2023 3:14PM

mknelson said:

viclauyyc said:

These paper invention patent need to be stop. If I file a flying car patent doesn’t mean I know how to make one.

These companies pretty much just combine a known technology with another object and hope someone like apple actually makes it into a popular product then sue for money. I should file a patent about smart shoes with ECG and hope Nike makes it into a thing.

AliveCor has several products and even produced an ECG device for early iPhone models.

They also discussed this technology with Apple so have a decent case that Apple "stole" the concept. That's why Apple has had to work hard to get the patents thrown out.

If AliveCor IP is unpatentable, discuss all you want. There is nothing there to steal.

mknelson · February 22, 2023 5:38PM

larryjw said:

mknelson said:

viclauyyc said:

These paper invention patent need to be stop. If I file a flying car patent doesn’t mean I know how to make one.

These companies pretty much just combine a known technology with another object and hope someone like apple actually makes it into a popular product then sue for money. I should file a patent about smart shoes with ECG and hope Nike makes it into a thing.

AliveCor has several products and even produced an ECG device for early iPhone models.

They also discussed this technology with Apple so have a decent case that Apple "stole" the concept. That's why Apple has had to work hard to get the patents thrown out.

If AliveCor IP is unpatentable, discuss all you want. There is nothing there to steal.

I was commenting on the usual patent troll type comments from other posters above. You'll note the comment I quoted starts with "These paper invention patent…".

The patents being invalidated boosts Apple's case, but in no way makes AliveCor a Troll as others have insinuated.

Ars Technica's article https://arstechnica.com/gadgets/2023/02/biden-wont-save-the-apple-watch-from-potential-ban/
According to AliveCor, which has around 150 workers to Apple's 80,000, it shared its ECG sensor technology with Apple in 2015 while building a business relationship, The Hill reported earlier this month. In 2018, Apple released the Apple Watch Series 4, which not only introduced an ECG sensor to the smartwatch but also blocked outside heart monitoring apps. AliveCor said this forced it in 2019 to stop selling KardiaBand, an ECG band that the company announced for Apple Watches in 2016.

edited February 2023

applezulu · February 22, 2023 5:55PM

The spin on this report is making me dizzy.

The actual facts of the case appear to be this:

AliveCor held patents in the area of ECG reader tech. Apple built ECG tech into the Apple Watch. AliveCor claims Apple has violated its patents, and took two parallel actions. They 1) filed a patent infringement suit against Apple, and 2) asked the International Trade Commission to ban US imports of Apple Watch if AliveCor wins the trial against Apple in the infringement cases.

Three things have resulted so far. 1) The courts invalidated AliveCor’s patents. 2) The ITC approved the import ban that would go into effect if AliveCor wins its infringement cases. 3) The President did not exercise his option to overrule the FTC.

This is not the same thing as suggested by this headline and article, that Joe Biden somehow sided with AliveCor to “uphold” a ban.

This whole thing is moot unless AliveCor turns everything around and wins the infringement case on appeal, which is unlikely. So why, other than cynical click bait, run a headline that makes it sound like Joe Biden is personally going to take your Apple Watch away?

edited February 2023

esquirecats · February 22, 2023 6:09PM

AliveCor will need to succeed in their patent appeal which was already declared unpatentable. That's a pretty high bar to pass and likely why the Biden administration didn't get involved – it's a problem that solves itself: If the court rules the patents are still invalid, then the block is moot, if the patents are found to have merit, then the Biden admin shouldn't be arbitrarily overruling the ITC.

appleish · February 22, 2023 6:28PM

So I should just throw my Ultra in the trash?

davidw · February 23, 2023 1:40AM

AppleZulu said:

The spin on this report is making me dizzy.

The actual facts of the case appear to be this:

AliveCor held patents in the area of ECG reader tech. Apple built ECG tech into the Apple Watch. AliveCor claims Apple has violated its patents, and took two parallel actions. They 1) filed a patent infringement suit against Apple, and 2) asked the International Trade Commission to ban US imports of Apple Watch if AliveCor wins the trial against Apple in the infringement cases.

Three things have resulted so far. 1) The courts invalidated AliveCor’s patents. 2) The ITC approved the import ban that would go into effect if AliveCor wins its infringement cases. 3) The President did not exercise his option to overrule the FTC.

This is not the same thing as suggested by this headline and article, that Joe Biden somehow sided with AliveCor to “uphold” a ban.

This whole thing is moot unless AliveCor turns everything around and wins the infringement case on appeal, which is unlikely. So why, other than cynical click bait, run a headline that makes it sound like Joe Biden is personally going to take your Apple Watch away?

Not quite. Not that it matters, except for getting the detail of the facts right.

AliveCor did not .... "asked the International Trade Commission to ban US imports of Apple Watch if AliveCor wins the trial against Apple in the infringement cases." It was the ITC that decided not to enforce any ban on the US imports of Apple Watch unless AliveCor wins the trial against Apple in the infringement cases. The ITC has the power to ban Apple Watch imports before the outcome of the trial but AliveCor would have to post a bond to cover Apple losses during the ban, in case AliveCor don't win their infringement case against Apple. AliveCor would never be able to afford to post such a bond. But you never know if some scumbag like Sweeney (CEO of Epic Games) might post the bond for AliveCor.

And it was not the courts that invalidated AliveCor patents, it was the US Patent Office own patent judges on the Patent Trial and Appeal Board (PTAB) that found the patents invalid. This makes it a lot harder, if not near impossible, for Alivecor to have their patents made valid again, on appeal. They are arguing their appeal case to the PTAB patent judges, not to a judge in a court of law. The courts must abide by the PTAB rulings and have no power to overturn any PTAB rulings on patents.

But you're right about the headline. It makes it seem as though there's a "potential" that the ITC will ban Apple Watch imports, when in reality at this point, there's almost no chances at all.

It's a win-win for POTUS Biden to say that he would not veto the ITC "potential" ban on Apple Watch as this shows his progressive supporters that he is not on the side of big tech but he also knows that the outcome of the ITC case is almost certain to be in Apple's favor anyway. Thus no harm done. If there was a real "potential" that the ITC could ban Apple Watches, he would surely had waited until the ITC made such a ban, to decide on any veto. He still have the power to veto a ban, even after the ITC makes the decision to ban Apple Watches.

ronn · February 23, 2023 2:39AM

AppleZulu said:

The spin on this report is making me dizzy.

The actual facts of the case appear to be this:

AliveCor held patents in the area of ECG reader tech. Apple built ECG tech into the Apple Watch. AliveCor claims Apple has violated its patents, and took two parallel actions. They 1) filed a patent infringement suit against Apple, and 2) asked the International Trade Commission to ban US imports of Apple Watch if AliveCor wins the trial against Apple in the infringement cases.

Three things have resulted so far. 1) The courts invalidated AliveCor’s patents. 2) The ITC approved the import ban that would go into effect if AliveCor wins its infringement cases. 3) The President did not exercise his option to overrule the FTC.

This is not the same thing as suggested by this headline and article, that Joe Biden somehow sided with AliveCor to “uphold” a ban.

This whole thing is moot unless AliveCor turns everything around and wins the infringement case on appeal, which is unlikely. So why, other than cynical click bait, run a headline that makes it sound like Joe Biden is personally going to take your Apple Watch away?

Thank for actually pointing this out. Apple haters and others that should know better got this decision completely wrong on several counts. The ITC states unequivocally:

"The enforcement of these orders, including the bond provision, is suspended pending final resolution of the U.S. Patent and Trademark Office, Patent Trial and Appeal Board’s (“PTAB”) Final Written Decisions finding the asserted patent claims unpatentable."

So AliveCor's only hope is the antitrust trial that now appears to be a Hail Mary on its end. It's more likely that the clock will run out and AliveCor will wind up empty-handed.

carnegie · February 23, 2023 4:14AM

AppleZulu said:

The spin on this report is making me dizzy.

The actual facts of the case appear to be this:

AliveCor held patents in the area of ECG reader tech. Apple built ECG tech into the Apple Watch. AliveCor claims Apple has violated its patents, and took two parallel actions. They 1) filed a patent infringement suit against Apple, and 2) asked the International Trade Commission to ban US imports of Apple Watch if AliveCor wins the trial against Apple in the infringement cases.

Three things have resulted so far. 1) The courts invalidated AliveCor’s patents. 2) The ITC approved the import ban that would go into effect if AliveCor wins its infringement cases. 3) The President did not exercise his option to overrule the FTC.

This is not the same thing as suggested by this headline and article, that Joe Biden somehow sided with AliveCor to “uphold” a ban.

This whole thing is moot unless AliveCor turns everything around and wins the infringement case on appeal, which is unlikely. So why, other than cynical click bait, run a headline that makes it sound like Joe Biden is personally going to take your Apple Watch away?

AliveCor initiated at least 3 separate actions. There was the infringement suit you refer to as well as an antitrust suit. Then there was the complaint it made to the USITC. But action from the USITC didn't depend on the result of the infringement suit. The USITC investigation proceeded on its own; determinations made and remedies imposed by the USITC don't hinge on what ultimately happens with the infringement suit. Indeed, that suit was, last I checked, on hold pending the outcome of the USITC investigation. And the antitrust suit was, last I checked, at the motion to dismiss stage.

Further, the courts haven't invalidated AliveCor's patents (i.e. the relevant claims from two of its patents). It was the PTAB (the Patent Trial and Appeal Board), part of the U.S. Patent and Trademark Office, which did that. The Federal Circuit will now decide whether to uphold the invalidations by the PTAB. That could take a year or more and that's the appeal that AliveCor needs to win to have a chance to see the USITC's exclusion order go into effect. AliveCor also needs to win that appeal to have a real chance to win the infringement case which, for now, is effectively on hold. AliveCor doesn't, however, necessarily need to win that appeal in order to win the antitrust case against Apple.

President Biden upholds potential Apple Watch ban

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President Biden upholds potential Apple Watch ban