You know the story by now. An International Trade Commission (ITC) judge ruled that Apple had infringed on patents owned by Masimo for the pulse oximeter used on some Apple Watch models. The ITC imposed an import ban on the Apple Watch Series 9 and Apple Watch Ultra 2 models in the U.S. starting on December 26th when a presidential review period comes to an end. President Joe Biden could still decide to veto the import ban and the White House is playing this close to the vest with nary a hint of what Biden will do.
Even though the presidential review period still has a few days to go, Apple decided to start the ban early and, just like it said it would, removed the offending devices from the U.S. online Apple Store starting Thursday afternoon. A screenshot from the Apple Store app shows that the listings for Series 9 watches say “Delivery: Currently unavailable.” This coming Sunday, December 24th, Apple will pull the products from physical Apple Stores in the U.S. New signage for Apple Store locations in the states removes all traces of the Series 9 Apple Watch and the Apple Watch Ultra 2.
Third-party retailers in the U.S. like Best Buy, Target, and Walmart are allowed to continue selling the affected Apple Watch models until their supplies run out. It should be noted that the second-generation Apple Watch SE, while released this past September like the Apple Watch Series 9 and Ultra 2 models, is not affected by the import ban because it does not include the pulse oximeter feature.
Apple Watch Series 9 models are listed as currently unavailable in the Apple Store app
If the White House decides not to get involved, it will probably say nothing on December 25th. Apple most likely would respond by appealing the decision the very next day, Monday, December 26th. The company says that it is “pursuing a range of legal and technical options” in an attempt to get the affected Apple Watch models back on store shelves. Apple engineers have been looking at making changes to the pulse oximeter’s algorithms and software to avoid infringing on Masimo’s patent.
Reportedly, Apple has been playing around with the technology it uses to determine an Apple Watch user’s blood oxygen level and how that information gets to the user. But even if it can deliver a workaround to show U.S. Customs officials (the agency is in charge of exclusion orders issued by the U.S. ITC), Apple isn’t sure that a software fix will clear a patent infringement ruling that is based on hardware.
Apple could decide to sit down with Masimo and discuss a settlement and a licensing deal. But as we told you a couple of days ago, Masimo CEO Joe Kiani wants Apple to apologize first. “These guys have been caught with their hands in the cookie jar,” Kiani said.
