The silence from the White House yesterday was deafening as far as Apple was concerned. Yes, it was Christmas Day, but it also was the end of the 60-day Presidential Review Period for the ITC’s Exclusion Order against Apple and certain Apple Watch models that can no longer be sold in the U.S. Apple was hoping for a presidential veto like the one it received from President Obama in 2013 when the ITC ordered an import ban on certain AT&T-sold iPhone and iPad models after Apple was found to have infringed on some Samsung patents.
The decision made by the president was confirmed today by the office of U.S. Trade Representative Katherine Tai. A press release issued by the office said, “After careful consultations, Ambassador Tai decided not to reverse the ITC’s determination and the ITC’s decision became final on December 26, 2023.”
Apple has been following the ITC’s Exclusion Order earlier than required with the offending Apple Watch Series 9 and Apple Watch Ultra 2 removed from Apple’s online store in the U.S. on December 21st and from physical brick-and-mortar U.S. Apple Stores on Christmas Eve. The watches infringe on patents owned by Masimo for hardware that allows the timepieces to compute the user’s blood oxygen level. The pulse oximeter is not a feature on the Apple Watch SE 2 allowing that model to stay on the virtual and real shelves at the online and physical Apple Stores. Third-party retailers like Best Buy, Target, and Walmart can continue to sell the offending products until they run out of inventory.
Among the 2023 releases, only the Apple Watch SE 2 can be promoted in the U.S. by Apple
CNN states that Apple has filed an appeal with the U.S. Federal Circuit Court asking it to overturn the ITC’s Exclusion Order. Apple said today that it is not only hoping for a reversal on the legal side of things, but it is also planning to submit to U.S. Customs (the agency responsible for making sure that ITC import bans are being followed) a redesign of the Apple Watch Series 9 and Apple Watch Ultra 2 models. Apple hopes that the redesign will still allow the pulse oximeter on the watches to do their job but in a way that is different enough not to infringe on Masimo’s patents.
In a statement, Apple said, “At Apple, we work tirelessly to create products and services that meaningfully impact users’ lives. It’s what drives our teams — Clinical, Design and Engineering — to dedicate years to developing scientifically validated health, fitness and wellness features for Apple Watch. We strongly disagree with the USITC decision and resulting exclusion order, and are taking all measures to return Apple Watch Series 9 and Apple Watch Ultra 2 to customers in the U.S. as soon as possible.”
