Starting on Thursday at 3 pm EST, the Apple Watch Series 9 and the Apple Watch Ultra 2 will no longer be available at U.S. Apple Stores. That is when Apple decided that it would start the U.S. import ban on those devices that was imposed on them by the International Trade Commission (ITC). An ITC judge ruled that Apple had infringed on patents owned by Masimo for the pulse oximeter (aka blood oxygen sensor) used on the three affected Apple Watch models.
Technically, Apple has until December 25th which is when the Presidential Review Period ends and President Joe Biden has the ability to make this all go away by vetoing the ITC punishment. On December 25th, unless Biden signs a veto, Apple will be barred from selling the impacted devices online or through resellers in the U.S.
Masimo CEO Joe Kiani says any talks with Apple will have to have an “honest dialogue”
Besides counting on the president, which usually is a failed strategy when it comes to ITC action, Apple could try to come up with some sort of Hail Mary pass in the form of a software change that would allow the feature to continue to work accurately without infringing on the patents. Last night, we passed along a report from Bloomberg indicating that Apple engineers were hard at work in an attempt to pull this off. However, since the patent is hardware-related, software changes might not get Apple off the hook.
The pulse oximeter on the Apple Watch
Apple could also disable the feature on existing and new models which we are sure would be distasteful to the company. And possibly just as repulsive to Apple but certainly an option, the tech giant could reach a settlement and license the patents. As of last night, Bloomberg reported that the two sides had not met or scheduled a meeting. Apple did resort to something similar in 2019 when it settled with Qualcomm and signed a chip supply agreement for the latter’s 5G modem chips.
Apple got caught “with their hands in the cookie jar,” says Masimo’s CEO
Masimo is willing to discuss a possible settlement with Apple. That comes from the medical device firm’s CEO, Joe Kiani. The executive was interviewed by Bloomberg and said that the last time he spoke with Apple was in 2013. Kiani says that any settlement talks would have to have an “honest dialogue” and include an apology. Discussing Apple, Masimo’s CEO said, “These guys have been caught with their hands in the cookie jar.”
It is obvious that any talks between Apple and Masimo would not be warm and friendly. “This is not an accidental infringement — this is a deliberate taking of our intellectual property,” Kiani said. “I am glad the world can now see we are the true inventors and creators of these technologies.” The executive also believes that Apple’s decision to stop selling the specific Apple Watch models a few days before Biden makes his decision is a “stunt” designed to pressure the president to veto the import ban.
Apple has already adjusted the signage in U.S. Apple Stores because of the ban as it removed images of the Apple Watch Series 9 and the Ultra 2 from promotional pictures placed in the stores.
Kiani says that had Apple made the Apple Watch and all of the necessary components in the U.S., there would be no talk of an import ban. That gave the CEO an opportunity to point out that Masimo builds its products in the U.S.
Apple says that it believes that Masimo started the legal battle to help clear the way for it to launch its own smartwatch which Apple says is a copy of the Apple Watch.
