Selling Apple Watches Without a Blood Oxygen Sensor Will Help Apple Avoid a Ban

Paresh Jadhav

11 months ago

Masimo’s Series 9 and Ultra 2 wearables will remain available in the US despite an ITC ruling stating their blood oxygen sensor feature infringed upon Masimo patents.

On Wednesday, an appeals court denied Apple’s request for a longer reprieve on its ban, giving them the choice between redesigning or withdrawing them altogether.

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The company’s legal battle with Masimo

Apple was denied an injunction to temporarily lift their trade ban on certain Apple Watch models with pulse oximetry sensor from Series 9 and Ultra 2 watches, such as Series 9 and Ultra 2, from being sold until their patent dispute with medical device firm Masimo is resolved. As a result, as of Thursday those models will no longer be sold in online or retail stores; existing customers remain unaffected.

Masimo, which provides healthcare equipment including patient monitoring systems, alleges that Apple stole its technology without authorization in developing the Apple Watch. Masimo filed suit in federal court against Apple last September which ultimately resulted in a mistrial when jurors could not reach a unanimous verdict on Monday afternoon.

Apple is also engaged in an intellectual property dispute with Alive Cor, who allege that the Apple Watch infringes upon electrocardiogram sensor patents and infringes upon those patents. That case remains open and could take months or years to be decided upon.

The ban

Apple’s smartwatches may soon go without one key feature for now; the US International Trade Commission reimposed its ban on Apple Series 9 and Ultra 2 watches containing Masimo pulse oximetry sensor due to patent infringement concerns.

Since December when a court temporarily lifted their sales ban, Apple Watches featuring controversial sensors won’t be sold in the US from Thursday onwards – although cheaper models such as SE will continue being available for purchase.

Apple may find itself powerless to get around Masimo’s ban. Masimo CEO Joe Kiani believes that this ruling proves “that even large and powerful companies must respect intellectual property rights of American inventors”. And it appears he may be right.

Software workaround

Apple can appeal the ITC’s final decision at the US Court of Appeals for the Federal Circuit, but that won’t stop its ban. At 3pm Thursday afternoon online sales of Series 9 and Ultra 2 models will cease as planned and are set to leave stores by December 24. Sales may resume once either Apple can find ways around Masimo patents or sign a licensing agreement.

Apple engineers are working on software changes designed to alter key algorithms used by the Watch in order to avoid patent infringement accusations from Masimo, but Apple’s partner for blood oxygen sensor believes this won’t be sufficient as Masimo’s patent covers specific pieces of hardware.

Masimo CEO Joe Kiani indicated his company is open to reaching an amicable settlement, although no contact has yet been made between Masimo and Apple regarding such an option. As it seems unlikely a solution will be reached before Christmas arrives,

Updates

Apple announced Wednesday that its US sales of Series 9 and Ultra 2 models featuring an embedded blood oxygen sensor will discontinue starting Thursday online sales and Dec 24 retail store sales, although previous models without this feature will still be offered for sale.

Masimo, a medical technology firm, claims that two watches featuring pulse oximetry technology infringe upon its patents and should therefore be banned from importation; an International Trade Commission ruling in October ordered such an import ban; however, an appeals court temporarily suspended this order in December; following which, the Biden administration indicated it wouldn’t reverse it.

Now the decision rests with President Joe Biden, who has 60 days to review the International Trade Commission (ITC) ruling and decide if he wishes to veto it or not. A successful veto could allow Apple to resume selling affected models within the US market as well as prevent ITC from imposing permanent import bans.

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