Apple ceasing sales of Apple Watch 9/Ultra 2

[Cmaier]

The point is multifold:
first, since Masimo wanted Apple to license its patents, Apple should be only paying for fair patents. Why should they be paying for 15 patents that aren’t valid?

They aren’t. If they pay, they pay reasonable royalties or lost profits relating to the valid and infringed patents.

Second, the point I was trying to make was that Masimo is going after Apple and causing a sales ban with nearly a majority of patents that are invalid. That’s kind of bullshit. The only reason it’s going through to a sales ban is because Masimo complained to the ITC. and the situation is worse given what product is actually banned, as I stated in my reply.

The sales ban was caused only by the fact that two patents were found valid. The invalid patents have nothing to do with it. The ITC didn’t impose a sales ban because of invalid patents.

Third, I stated it to also provide evidence for my claims. Also Masimo doesn’t just go after Apple. They’ve gone after many companies unfairly. So that Masimo is going after companies with a supposed litany of patents that aren’t even valid seems bullshit to me. You and I have both stated “thus far” and “so far,” of course it’s also possible all 17 patents become invalid.

It’s possible, but anything is possible. In law, there is a presumption that patents are valid. While the validity of patents can be challenged, the challenger has the burden of proving them invalid.

 

[JRLMustang]

The ITC didn’t impose a sales ban because of invalid patents.

I’ve seen this line of reasoning. It’s terrible. Though seductive, it’s incorrect. The point is, the ITC ought not invalidate an entire product with many other features and functions due to one or two suspect patents valid or not. I know that might gall some folks, but instituting a ban of this nature is clearly overkill. The punishment doesn’t fit the crime. Now if the order was to disable said feature until an agreement was reached, well that’s something else entirely. Put another way, (and as an example) if the infringing tech was found in the steering wheel or occupant seat of some automobile, would one expect a sales ban of the entire product; especially if said function could easily be disabled?

The main function of the  Watch is NOT a pulse oximiter. The ITC clearly made a bad call. No amount of mental gymnastics or word salad will change that. To make matters worse, the ITC in its infinite wisdom is depriving end users of a product that has equally beneficial features and functions beyond pulse oximetry. And let’s not forget, Masimo faild by not reaching an agreement with Apple in the first place. Instead, they decided to make a spectacle.

 

[Cmaier]

I’ve seen this line of reasoning. It’s terrible. Though seductive, it’s incorrect.

Huh? As someone who defends patent cases in the ITC this is news to me.

The point is, the ITC ought not invalidate an entire product with many other features and functions due to one or two suspect patents valid or not. I know that might gall some folks, but instituting a ban of this nature is clearly overkill. The punishment doesn’t fit the crime. Now if the order was to disable said feature until an agreement was reached, well that’s something else entirely.

They can do that, when the patent claim goes to a method. And Apple says they have found a way to disable the infringing functionality. The ITC has not yet agreed this is true. Of course if the patent claims go to an apparatus and not a method, you can’t get around the patent by disabling something.

Put another way, (and as an example) if the infringing tech was found in the steering wheel or occupant seat of some automobile, would one expect a sales ban of the entire product; especially if said function could easily be disabled?

Not sure of your point. If Apple can make the product no longer infringe, then such product is not banned. So far Apple hasn’t done that.

The main function of the  Watch is NOT a pulse oximiter. The ITC clearly made a bad call. No amount of mental gymnastics or word salad will change that. To make matters worse, the ITC in its infinite wisdom is depriving end users of a product that has equally beneficial features and functions beyond pulse oximetry. And let’s not forget, Masimo faild by not reaching an agreement with Apple in the first place. Instead, they decided to make a spectacle.

The law doesn’t allow for he ITC to think that way. If the product infringes, then the patentee is entitled to an exclusion order. This encourages the infringer to take a license, when otherwise they would just stall and not negotiate in good faith. In fact, according to the press, Apple hasn’t even tried to negotiate.

 

[JRLMustang]

Of course if the patent claims go to an apparatus and not a method, you can’t get around the patent by disabling something.

But it’s not just a single apparatus that may or may not be using similar tech. It’s but one part of the whole. And I’m sorry, but that’s the problem I have with lawyers in general (no you personally, just in general). If something is disabled (in this case, the interim let’s say), it more than less implies uselessness as far as the end user is concerned. That’s why functionality ought to be part of the decision. And if it’s non-functional it’s technically not infringing anything. It may *appear* that it could or it might, but if it’s not functional (i.e., disabled) then it moots the point. Period. And that’s the funny thing about patents, you may attain similar or the same functionality using varying methods, but it’s only until we have a *functioning* apparatus employing a particular (and working) method that we determine anything. In this case we have a multifunctional apparatus providing functionality well beyond pulse oximetry, that *was* being banned over 2 patents is it?

Here’s a thought process for you: Would Apple have been found to infringe if they shipped the watch with the (let’s call it the feature) unadvertised and disabled? In other words, no one knew it was even in there. And even if discovered, the fact that it was disabled will say absolutely nothing regarding the *method* used to produce the results. The answer is either “yes” or “no”, but I believe it’s quite clear.

Bottom line in this instance? The ITC ought to have crimped the particular questionable tech until it’s reviewed more thoroughly and until all the facts of the case are known, and not implement a blanket ban on a product that offers far more features and functionality beyond the alleged infringing tech.

While you’re at it, would you be kind enough to point me to the two patents Masimo is claiming are being infringed?

 

[Cmaier]

But it’s not just a single apparatus that may or may not be using similar tech. It’s but one part of the whole. And I’m sorry, but that’s the problem I have with lawyers in general (no you personally, just in general). If something is disabled (in this case, the interim let’s say), it more than less implies uselessness as far as the end user is concerned.

No it doesn’t. It just means that the infringer is more willing to suffer the consequences of disabling it (lost sales, reduced sale price, whatever) than suffer the consequences of paying a license fee. That may say something about the reasonable license fee, which is why this is something (i.e. the cost of a work-around) that can be taken into account in district courts (where royalties can be awarded as a punishment, unlike in the ITC). And it’s something that would certainly be raised by apple in settlement negotiations. But it isn’;t a rational basis to avoid an exclusion order. Because without an exclusion order there would be no reason for Apple to negotiate - the ITC can’t order Apple to pay royalties. And apple hasn’t negotiated even to this day, apparently. So let me turn that around on you - if the exclusion order is such a harsh penalty, wouldn’t apple be willing to pay Massimo something to make it go away?

That’s why functionality ought to be part of the decision.

No it shouldn’t, for the reasons stated above.

And if it’s non-functional it’s technically not infringing anything.

That’s not necessarily the case. I mentioned, earlier, the difference between method claims and apparatus claims. If my patent claim is “a watch comprising a widget with features x, y and z,” then it infringes whether or not the widget is “functional.” If my patent is a “method claim,” like “a widget in a watch that performs steps x, y and z,” then It only infringes if the steps x, y and z are performed, so you can get around infringement by skipping any of those steps.

In patent law words actually matter, and there is a ton of case law on “non-functionality” and the implications. You can’t just come along and declare it should be the way you’d like.

It may *appear* that it could or it might, but if it’s not functional (i.e., disabled) then it moots the point. Period.

The simple example i gave above shows that your “period” is a bit misplaced.

And that’s the funny thing about patents, you may attain similar or the same functionality using varying methods, but it’s only until we have a *functioning* apparatus employing a particular (and working) method that we determine anything. In this case we have a multifunctional apparatus providing functionality well beyond pulse oximetry, that *was* being banned over 2 patents is it?

Again, patent claims can be directed to structure, materials, OR functionality. You are focussed on only one of the three.

But even so, let’s assume all the claims are method claims. If you infringe the method, and there are a million more methods that the device also performs, that’s still not a good reason to not have an exclusion order. If the method isn’t important, then you should be willing to stop doing it, in which case there won’t be an exclusion order. If you aren’t willing to stop doing the infringing method, then apparently it must be pretty important. In which case the exclusion order will motivate you to pay a license to keep doing it.

In this case we don’t know what apple really thinks about it, but so far they have been unwilling to negotiate and they claim they have a way to stop infringing. If they are right, then they can continue selling the device. If they are wrong, which the judge will determine, then they will still have to make a choice, themselves, as to how important continued infringement is to their product.

O
Here’s a thought process for you: Would Apple have been found to infringe if they shipped the watch with the (let’s call it the feature) unadvertised and disabled? In other words, no one knew it was even in there. And even if discovered, the fact that it was disabled will say absolutely nothing regarding the *method* used to produce the results. The answer is either “yes” or “no”, but I believe it’s quite clear.

This thought experiment is irrelevant. They may or may not have been found to infringe in that case - it depends on the exact wording of the patent claims. I don’t know whether they are all “method” claims or not. But, in any event, a finding of infringement, if it would have occurred in that case, if it results in an exclusion order, would have the desired effect of prompting the infringer to either stop infringing or to pay the patentee.

Bottom line in this instance? The ITC ought to have crimped the particular questionable tech until it’s reviewed more thoroughly

Reviewed more thoroughly? More thoroughly than what? This has gone on for years. The point of an ITC trial is to let each side thoroughly make its case. There have been appeals along the way. At some point there has to be a result.

and until all the facts of the case are known, and not implement a blanket ban on a product that offers far more features and functionality beyond the alleged infringing tech.

While you’re at it, would you be kind enough to point me to the two patents Masimo is claiming are being infringed?

Looks like it is U.S. Pat. No‘s 10,912,502 and 10,945,648. The infringed claims are:

‘502 claim 22: (listing 19-21, as they are incorporated into claim 22)

19. A user-worn device configured to non-invasively measure an oxygen saturation of a user, the user-worn device comprising:
a plurality of emitters configured to emit light, each of the emitters comprising at least two light emitting diodes (LEDs);
four photodiodes arranged within the user-worn device and configured to receive light after at least a portion of the light has been attenuated by tissue of the user;
a protrusion comprising a convex surface including separate openings extending through the protrusion and lined with opaque material, each opening positioned over a different one associated with each of the four photodiodes, the opaque material configured to reduce an amount of light reaching the photodiodes without being attenuated by the tissue;
optically transparent material within each of the openings; and
one or more processors configured to receive one or more signals from at least one of the four photodiodes and output measurements responsive to the one or more signals, the measurements indicative of the oxygen saturation of the user.

20. The user-worn device of claim 19 further comprising a thermistor.
21. The user-worn device of claim 20, wherein the one or more processors are further configured to receive a temperature signal from the thermistor and adjust operation of the user-worn device responsive to the temperature signal.
22. The user-worn device of claim 21, wherein the plurality of emitters comprise at least four emitters, and wherein each of the plurality of emitters comprises a respective set of at least three LEDs.

‘502 claim 28:

28. A user-worn device configured to non-invasively measure an oxygen saturation of a user, the user-worn device comprising:
a first set of light emitting diodes (LEDs), the first set of LEDs comprising at least an LED configured to emit light at a first wavelength and an LED configured to emit light at a second wavelength;
a second set of LEDs spaced apart from the first set of LEDs, the second set of LEDs comprising at least an LED configured to emit light at the first wavelength and an LED configured to emit light at the second wavelength;
four photodiodes arranged in a quadrant configuration on an interior surface of the user-worn device and configured to receive light after at least a portion of the light has been attenuated by tissue of the user;
a thermistor configured to provide a temperature signal;
a protrusion arranged above the interior surface, the protrusion comprising:
a convex surface;
a plurality of openings in the convex surface, extending through the protrusion, and aligned with the four photodiodes, each opening defined by an opaque surface configured to reduce light piping; and
a plurality of transmissive windows, each of the transmissive windows extending across a different one of the openings;
at least one opaque wall extending between the interior surface and the protrusion, wherein at least the interior surface, the opaque wall and the protrusion form cavities, wherein the photodiodes are arranged on the interior surface within the cavities;
one or more processors configured to receive one or more signals from at least one of the photodiodes and calculate an oxygen saturation measurement of the user, the one or more processors further configured to receive the temperature signal;
a network interface configured to wirelessly communicate the oxygen saturation measurement to at least one of a mobile phone or an electronic network;
a user interface comprising a touch-screen display, wherein the user interface is configured to display indicia responsive to the oxygen saturation measurement of the user;
a storage device configured to at least temporarily store at least the measurement; and
a strap configured to position the user-worn device on the user.



‘648 Claim 12 (listing also claim 8, which is incorporated into claim 12):

8. A user-worn device configured to non-invasively determine measurements of a physiological parameter of a user, the user-worn device comprising:
a first set of light emitting diodes (LEDs), the first set comprising at least an LED configured to emit light at a first wavelength and at least an LED configured to emit light at a second wavelength;
a second set of LEDs spaced apart from the first set of LEDs, the second set of LEDs comprising an LED configured to emit light at the first wavelength and an LED configured to emit light at the second wavelength;
four photodiodes;
a protrusion comprising a convex surface, at least a portion of the protrusion comprising an opaque material;
a plurality of openings provided through the protrusion and the convex surface, the openings aligned with the photodiodes;
a separate optically transparent window extending across each of the openings;
one or more processors configured to receive one or more signals from at least one of the photodiodes and output measurements of a physiological parameter of a user;
a housing; and
a strap configured to position the housing proximate tissue of the user when the device is worn.
12. The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation.


’648 Claim 24 (listing also claim 20, which is incorporated into claim 24):

20. A user-worn device configured to non-invasively determine measurements of a user's tissue, the user-worn device comprising:
a plurality of light emitting diodes (LEDs);
at least four photodiodes configured to receive light emitted by the LEDs, the four photodiodes being arranged to capture light at different quadrants of tissue of a user;
a protrusion comprising a convex surface and a plurality of through holes, each through hole including a window and arranged over a different one of the at least four photodiodes; and
one or more processors configured to receive one or more signals from at least one of the photodiodes and determine measurements of oxygen saturation of the user.

24. The user-worn device of claim 20, wherein the protrusion comprises opaque material configured to substantially prevent light piping.

’648 claim 30 (note: this also incorporates claim 20):

30. The user-worn device of claim 20, wherein the protrusion further comprises one or more chamfered edges.


Note that now that I have read the claims, these are apparatus (structure) claims, not method claims, BUT they do require that one or more of the components be ”configured” a certain way and output specific things.

I can’t render legal opinions, for obvious reasons, but as a thought experiment consider: “one or more processors configured to receive one or more signals from at least one of the photodiodes and determine measurements of oxygen saturation of the user.” I assume apple is trying to work around this. But it seems to me, as an engineer, to be a little tricky. If they want the device to provide the oxygen saturation functionality, then the device must have a processor configured to determine measurements of oxygen saturation of the user. Don’t see a way around that. So can they change the device, using software, such that the processor doesn’t receive once or more figures from at least one the photodiodes? I doubt that, too, since my understanding is that’s fundamental to the way the watch works.

Can they work around “the four photodiodes being arranged to capture light at different quadrants of tissue of a user,” for example by disabling one of the four photodiodes? Then we get into a legal issue. Arguably, whether or not you use all four photodiodes, they are still arranged to capture light at different quadrants…. Does the claim limitation require only the arrangement? Or does it require the actual capturing? I have an opinion, but the courts may have a different opinion. And the way they reach the answer is by following the canons of claim construction to figure out what the claims mean - a process I have not undertaken (but which involves reading the entirety of the patent, figuring out if it explains what the claims mean, reading the prosecution history of the patents, etc.)

 

[JRLMustang]

Thanks for posting the patents. Just glancing through ‘502, to me, seems overly broad “wearable”? With a strap? (Hmmmm). Could mean anything from a pair of swim goggles to a sex toy. Convex lens? Almost like it’s describing an Apple Watch. Admittedly, I haven’t dug into yet. I’ll try and locate the new, novel and non-obvious part of that patent later. Like I said, just glancing but you would expect it to read a bit more specific when they state “wearable”. Wrist? Headband? Jockstrap?

The other thing I have a problem with is the timing. The Apple Watch was out and probably outselling all Masimo devices combined. Masimo sees the  Watch and the potential and now they have religion. Look when the parent ‘502 was filed vs when the Series 6 was released. In fact, let me help you… series 6 was released September 2020. I’m fairly certain a company like Apple took well over a year, maybe 2 before they released the series 6 with O2. That puts Apples R&D second half 2018 at a minimum. Masimo? And looking at the photos, I’m seeing what appears to be your standard, run of the mill finger pulse Ox device. I’ll look into more over dinner.

 

[mr_roboto]

The other thing I have a problem with is the timing. The Apple Watch was out and probably outselling all Masimo devices combined. Masimo sees the  Watch and the potential and now they have religion.

You're an armchair lawyer, as am I, but you don't seem to be asking yourself the appropriate question: if all your objections were true, how did this case get to the point of an injunction? If your suspicions about timing or vagueness were winning arguments, surely Apple's lawyers would have used them. They can afford to hire the best.

Some more on timing, though, because I think you got it very wrong. According to Google Patents, activity on related patents started as early as 2008. I'm not sure this is the right terminology, but these Masimo patents seem to be re-filings of previously granted patents, not new ones.

Also, you're going to hate what I'm about to say given how much of a halo you seem to put around Apple, but the truth is that Apple's a chronic patent law abuser. They're not alone in this. Nearly all the major tech companies apply for absurd numbers of patents, and lobby to have patent examiners reduce standards so more patents are granted. As I understand it, the point is to have a countersuit threat against other major players. This threat's credibility isn't based on all the patents being good ones that will hold up to scrutiny in court, it's that invalidating a mountain of junk in court will be prohibitively expensive for the other party. It's a form of mutual assured destruction - make it very expensive for another major player to come after you. Naturally, they file real patents covering real innovations too, but junk patents are an important tool for American tech companies.

I know (from talking to some) that Apple pays engineers bonuses for successful patent applications, and employs legal staff to help them do it. (Both practices are very common in Silicon Valley.) So, the framing story you're trying to push, in which innocent Apple released a new Watch feature only for evil Masimo to swoop in and patent it out from under them? It's absurd. This isn't Apple's first rodeo. They play the patent game as well as anyone, they file for everything they think they can get before even announcing a product.

 

[Cmaier]

They can afford to hire the best.

True. I defended them once

Some more on timing, though, because I think you got it very wrong. According to Google Patents, activity on related patents started as early as 2008. I'm not sure this is the right terminology, but these Masimo patents seem to be re-filings of previously granted patents, not new ones.

Also true. In patent law we call these “continuations.” If you read a patent, you will see that it consists of multiple parts. It has a title, an abstract, figures, text, and, most importantly, it has claims at the end. The claims determine the scope of the patent protection. You are entitled to prevent anyone else from selling or doing what the claims recite.

The main body of the patent is called the specification, and it includes a detailed description of the invention. Often times the claims don’t cover everything in the specification. For example, you can imagine a patent on a car, which describes an innovative steering wheel and an innovative engine. The claims of the patent can only be directed to one invention or the other, so they would just cover the steering wheel.

At any point up until the applicants pay the issue fee which results in the patent actually issuing (assuming it gets that far), the inventors can file a “continuation application” that claims priority to the first patent application. This new application is the same as the first application, but includes A replacement set of Claims. Each of the new claims must have support in the original application (that is, the details of the claim must be described in the text of the patent) in order for the inventors to get the benefit of the original patent’s filing date. (If not, the inventors can add new text to the body of the patent, and create something called a “continuation-in-part.” Claims that rely on the new text would only be entitled to the later filing date of the new application.)

Keep in mind that it typically takes at least a year from the initial application until the patent office decides you are entitled to a patent, and often much longer, and you typically file continuations near the end of that time. You can do this again as long as any member of the patent family still has an application open at the patent office (that is, hasn’t issued yet or been abandoned), and you can do multiple of these at the same time.

The ”priority” to the original application allows you to overcome prior art that was published (or for product prior art, sold) after that date. But that also means that your patent expires approximately 20 years after the original filing date, so patents that come later on have shorter lives.

 

[somerandomusername]

Not sure what the point is here. That leaves 2 patents that, so far, have survived invalidity attacks. Should you be allowed to infringe somebody’s patent as long as their other patents are found invalid?

Actually I gotta be honest: I’m not sure what your point is here either.
At this point in my reply to Theorist9, I started responding to why I believe Masimo is a horrible company. I started, but did not end with with what you were quoting.
I am not a lawyer, and I was not getting into whether Apple should license something. I was speaking to the fact that Masimo filed a bunch of broad patents, and that they go after multiple companies, one of which being Apple in attempt to extort or even shut down companies unfairly.
I think that’s distasteful behavior, given the situation and product. I never implied, ever, that Apple shouldn’t license fair technology. In fact, in an earlier reply I stated that Apple DOES license fair technology, but that they know when something is worth something and when something isn’t. Since they clearly knew most (at this point) of what Masimo had was horseshit, then Apple did the correct thing in going through the patent process to get certain patents invalidated. That is their right, just like it’s Masimo’s right to attempt to file patents and defend them. In doing so, Apple got 15 out of 17 patents invalidated. If, in the end, all 17 are invalidated not only does that mean Apple did not unfairly pay for technology that they should not have, but that they stopped a company from acting like a patent troll against a device that saves lives. Again, I have no idea what you were trying to say here with this. I feel like I’ve been really clear in all of my posts here. I don’t want people to think like I’m saying Apple shouldn’t license fair tech, if that is the point of your reply to me. Additionally, 6 out 7 jurors sided with Apple. Why 6 isn’t sufficient I don’t know, but now they’re going to do it again and hopefully the jury is unanimous this time. I’m never going to be convinced Masimo is in the right here because of what I’ve written across all of my replies on this thread (not saying that you or others were defending Masimo).

They aren’t. If they pay, they pay reasonable royalties or lost profits relating to the valid and infringed patents.

I wasn’t saying they were paying. I was referring to the hypothetical whether they should or not. I wasn’t claiming they were paying. Masimo wants them to pay. Why should they pay for 15 patents that are invalid? As it stands that’s what started all of this.

The sales ban was caused only by the fact that two patents were found valid. The invalid patents have nothing to do with it. The ITC didn’t impose a sales ban because of invalid patents.

If you can provide a source that says the ITC banned because of two particular patents and lays them out, I really want to see that. You don’t have to, I don’t really mind either way I’m merely curious.

It’s possible, but anything is possible. In law, there is a presumption that patents are valid. While the validity of patents can be challenged, the challenger has the burden of proving them invalid

Apple has done a pretty bang up job of proving their patents invalid. 6/7 jurors for Apple, and 15/17 patents kind of proves my point that Masimo’s stuff largely is BS, verging on being entirely BS, to be determined, far from being worthy of banning a device that has saved lives and will continue to save lives.

 

[somerandomusername]

The law doesn’t allow for he ITC to think that way. If the product infringes, then the patentee is entitled to an exclusion order. This encourages the infringer to take a license, when otherwise they would just stall and not negotiate in good faith. In fact, according to the press, Apple hasn’t even tried to negotiate.

Putting aside the fact that the press often makes shit up about Apple, actually almost always even if they included factual events in their articles, why should Apple negotiate to pay for patents they correctly interpreted as invalid? Again, someone here proposed to buy them for $7 billion. What the hell for? To get a bunch of a patents that upon review disappear into thin air lol? Let Apple pay and license for what is fair in the end. Anything else, practically speaking, is irrelevant. Masimo is trying to make them out to be the bad guy, when really it’s Masimo who is acting like a tool bag.

 

[somerandomusername]

So, the framing story you're trying to push, in which innocent Apple released a new Watch feature only for evil Masimo to swoop in and patent it out from under them? It's absurd. This isn't Apple's first rodeo. They play the patent game as well as anyone, they file for everything they think they can get before even announcing a product.

Yeah, uh… I’m gonna push back a bit on this “framing story” you’re claiming. You realize once upon a time Apple did NOT file for patents in such way you’re claiming? And then Apple got royally screwed for something they arguably should not have? I will link to an ArsTechnica article on this.

Creative pushed Steve Jobs to armor up for the smartphone patent war

Apple’s patent zeal was apparently triggered by a long-forgotten MP3 player.

arstechnica.com

After this situation with Creative, Apple started filing patents on literally anything and everything they could possibly come up with, no matter how small. So the idea that you’re trying to paint that Apple is playing the same game, true or not, is because of the idiots who forced them to play that idiotic game. No one is claiming Apple is purely innocent, whatever, but nor am I claiming they have done something against Masimo. The facts are that Masimo is on a PR tour claiming Apple is a POS, that they’re stealing all of this tech, and getting away with it. WHAT technology? 17 patents. Then upon review 15 of them, so far, are shit. Then a jury reviewed the facts and 6 out of 7 voted in favor of Apple. This is an ongoing matter. But those are FAVORABLE numbers to Apple so far. There is too much bullshit surrounding parasitic companies coming after others. You realize Masimo is going after many companies, including startups, not just Apple? Masimo should not have requested a sales ban on Apple Watch for reasons I stated at the end of my reply to Theorist9. If Masimo truly has something to license, then Apple can pay a fair price for those patents to license.
I hope what I write puts this situation into perspective, at least from my end anyway.

 

[JRLMustang]

https://www.inquartik.com/blog/apple-watch-masimo-pulse-oximeter-litigation/

“According to the Final Determination, patent no. US 10,945,648 (“User-worn device for noninvasively measuring a physiological parameter of a user”) was the only patent Apple infringed upon. . .

US Patent No. 10,945,648 was found to be infringed upon by an Administrative Law Judge in the ITC case. More specifically, Apple infringed on claim 24 and claim 30 of the patent, which covered the aspects “wherein the protrusion comprises opaque material configured to substantially prevent light piping” and “wherein the protrusion further comprises one or more chamfered edges,” respectively.

On a side note, claim 12 (“The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation”) of the ‘648 patent was invalidated by the Judge.”

 

[Cmaier]

https://www.inquartik.com/blog/apple-watch-masimo-pulse-oximeter-litigation/

“According to the Final Determination, patent no. US 10,945,648 (“User-worn device for noninvasively measuring a physiological parameter of a user”) was the only patent Apple infringed upon. . .

US Patent No. 10,945,648 was found to be infringed upon by an Administrative Law Judge in the ITC case. More specifically, Apple infringed on claim 24 and claim 30 of the patent, which covered the aspects “wherein the protrusion comprises opaque material configured to substantially prevent light piping” and “wherein the protrusion further comprises one or more chamfered edges,” respectively.

On a side note, claim 12 (“The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation”) of the ‘648 patent was invalidated by the Judge.”

You have to read the final determination by the ITC, not the recommendation of the administrative law judge. (Who isn’t an article iii judge, by the way. Administrative law is a whole other animal).

 

[Cmaier]

Here’s the most recent order from the full commission that explains the whole history and lists the two infringed patents and the infringed patent claims. References people made above to invalidated claims or only one patent being infringed weee based on intermediate recommendations that didn’t have any legal effect.

https://www.usitc.gov/secretary/fed_reg_notices/337/337_1276_notice12202023sgl.pdf

 

[Nycturne]

Also it should be noted that Masimo buys a bunch of companies irrelevant to being a “pure medical company” as I’ve seen some people try to argue. Example: they bought out major audio companies like Bowers & Wilkins, Denon, Marantz, Polk Audio, Definitive Technology, Classé, HEOS, and Boston Acoustics and own all of their technologies and patents.

Last time I checked, Masimo and DEI Holdings were separate entities.

Edit: It does look like Masimo did buy out Sound United (formerly DEI) in 2022. This is less surprising to me than some other purchases. Both areas are heavy in DSP, so there is some overlap in expertise, if not markets.

 

[somerandomusername]

Last time I checked, Masimo and DEI Holdings were separate entities.

Edit: It does look like Masimo did buy out Sound United (formerly DEI) in 2022. This is less surprising to me than some other purchases. Both areas are heavy in DSP, so there is some overlap in expertise, if not markets.

There is overlap in most technology. That doesn’t justify their buying a bunch of audio companies for the purposes of holding their technology. Masimo operated fine without Bower and Wilkins. Masimo has not invented anything new of consequence for quite some time. Most of it is riding on old stuff, and that old stuff is not holding up anymore either. S

 

[Cmaier]

Apple begins selling Apple Watch Series 9 and Ultra 2 without the blood oxygen feature - 9to5Mac

Earlier today, a US appeals court rejected Apple’s request to pause the Apple Watch Series 9 and Ultra 2 ban...

9to5mac.com

So, at least in the U.S., Apple will be selling Apple Watches without the blood oxygen sensing function (disabled via software). I’m very curious how this will work - existing watches will continue to have the function. Presumably there is only one version of the OS, so I assume that what goes on is that the O2 app will check to see if the watch has some flag set somewhere or not. I assume that if you buy a watch in the US and take it abroad, the O2 app won’t work (though there’s no legal reason that it couldn’t). If you buy a watch abroad and bring it to the US, might it work? Who knows.

 

[quarkysg]

Apple begins selling Apple Watch Series 9 and Ultra 2 without the blood oxygen feature - 9to5Mac

Earlier today, a US appeals court rejected Apple’s request to pause the Apple Watch Series 9 and Ultra 2 ban...

9to5mac.com

So, at least in the U.S., Apple will be selling Apple Watches without the blood oxygen sensing function (disabled via software). I’m very curious how this will work - existing watches will continue to have the function. Presumably there is only one version of the OS, so I assume that what goes on is that the O2 app will check to see if the watch has some flag set somewhere or not. I assume that if you buy a watch in the US and take it abroad, the O2 app won’t work (though there’s no legal reason that it couldn’t). If you buy a watch abroad and bring it to the US, might it work? Who knows.

My guess is that watchOS will likely disable the O2 sensor upon boot based on watch's serial number or some ID unique to the watch based on location of sale, so yeah, likely O2 disabled regardless of location and any watches imported into the US after the ban.

 

[throAU]

My guess is that watchOS will likely disable the O2 sensor upon boot based on watch's serial number or some ID unique to the watch based on location of sale, so yeah, likely O2 disabled regardless of location and any watches imported into the US after the ban.

That's how I'd do it. if serial < XXXXXXX then enable, else disable.

 

[mr_roboto]

That's how I'd do it. if serial < XXXXXXX then enable, else disable.

Not quite as simple as that since 2021, when Apple switched to random serial numbers. The old ones encoded lots of info like year/week of manufacture, which would be perfect, but the new ones have no known structure.

The SoC probably has a few OTP memory bits not allocated to any specific function. If so, they could just start programming one at the factory as a flag for "disable pulse oximetry (for now)".