What no one's mentioned here is: this is an International Trade Commission ruling, not a US court or PTO ruling.
So Apple cannot import those watches. They could probably build them in the US (now there's a thought), and injunctions against domestic products are possible but very unusual. Usually there are damages, not injunctions.
You make a small mistake, which is really the fault of reporters for not explaining the somewhat complex world of Article I tribunals. The "International Trade Commission" is more properly known as "The United States International Trade Commission", a creation of Congress to adjudicate a number of trade-related disputes. As an Article I Tribunal, all appeals are heard by the United States Court of Appeals for the Federal Circuit. And of course, that gives you a fast track to the Supreme Court if desired. The President may also unilaterally overturn rulings, as has been done by Presidents Reagan and Obama.
Apple can't build a factory to produce Apple Watches before the entire situation would be resolved. And if they could, it would be much more expensive to run compared to making it in Vietnam (where they make it now).
I don't think anyone is seriously considering that, I think the broader point is that by outsourcing and being a tad greedy they have shot themselves in the foot inadvertently.
Of course, they'll have run the numbers and the cost of this fiasco is likely many-many orders of magnitude below the savings from using cheap labour.
They are made by Luxshare's China factory, its Vietnam factory probably are trying to ramp up to it. Given how short Luxshare as a company and its capabilities to take shares from Foxconn, ppl may have over estimated the difficulty there.
> Can we still manufacture electronics here, even if we wanted to? I thought all the expertise and machinery was outsourced a long time ago?
Yes. There's a bunch of industries that either can't or don't bother manufacturing in China. The majority of the military industrial complex and much of the biotech/medical equipment industry, among many others. The former for natsec reasons and the latter because even after 20 years QC is still a shitshow.
The problem is how spread out the industrial capacity is. In Shenzhen you can walk from the factory to a giant bazaar with every electronic part you could think of available to buy then and there in reel quantities. You can walk to any of hundreds of other factories and talk to the people on the floor to help design parts for their process. When the part is ready, they can courier it over to you within an hour.
The cost of labor doesn't help either but at Apple scale, US companies would figure it out.
We can manufacture electronics here, though the exact details of the Apple Watch are probably not easy to accommodate. (The manufacturing engineers knew it would be built in China, so they chose parts and processes that are mature there. For example, if the requirement was for all the parts to be made in the US, then it would probably use an Intel chip, since those are made in the US. It probably wouldn't get 2 days of battery life if they used one of those, however.)
I've seen tons of articles/posts about this recently, but does anyone have any links to any good articles that describe the patent(s) in question, and what the arguments are about (a) whether this patent is truly novel (I've heard tons of "pulse oximetry is decades old" arguments, but nothing about the specifics of these patents) and (b) whether Apple is or isn't infringing on the specific details?
I'm sure this kind of analysis must be out there, but I searched through a couple of posts and lots of comment threads and primarily saw a lot of conjecture but no actual references to what was really under debate.
I too would be curious. That said, it's worth noting here that Masimo[0] is an actual company that produces pulse oximetry devices, not a patent troll.
Masimo claims Apple had project to emulate or obtain their tech without paying them, including poaching employees. Apple hired their CTO Marcelo Lamego.
“In the first two weeks that Lamego was at Apple, he filed 12 patents for medical and sensor technologies for the Watch. Though he would only stay at the company for six months, Lamego would be named as an inventor on many more.”
What you think you want is the "patent prosecution history." I say "think" because it's kinda "all hope abandon, ye who enter here." Go to uspto.gov and prepare to be perplexed.
You can be sure the issues of novelty and non-obviousness were argued there. Does that mean they'll be clear to you? Heh.
Pro tip: the history is in reverse chronological order. Any doc that's only one page, you can probably ignore. All the arguments are in multi-page PDF's.
In the meantime, retailers like Best Buy can sell units that have already been imported to the US, and Apple can still sell the SE.
I wonder if Apple preemptively imported a ton of watches for resale, to give them some breathing room. I imagine the post-Christmas period is relatively slow, and they’ll likely refresh the watches in May. Would it be possible for them to stuff the resale channels with 3 months of inventory, and then just move to a new generation of watches at WWDC?
Outside of their own apple stores Apple is not managing or storing inventory for retail sale. A shipment for bestbuy or Amazon will almost always go straight from the origin to the retailer logistics hub in the US.
Agreed; the question is whether Apple encouraged retailers to take on large inventories on a preemptive basis. It's in the retailers' interests to load up so that they're not left dry for an extended period. The only possible bad outcome for them is if they load up but then Apple settles, and they're not able to move it fast enough. But Apple could offer to buy back excess in order to alleviate this concern. It would seem like Apple and the retailers would want to work together 'against' Masimo here, since they both make money by stuffing the channel. I don't know if there are any ITC rules against this type of behavior during the pendency of an injunction.
I was thinking that was the soonest event at which they regularly announce new products. They probably weren’t intending to revamp for a year, but under the circumstances they’ll probably update sooner (or settle).
Is there a chance Apple will pay Masimo for the technology and resume sales?
I am curious why that didn’t happen. If this is an exec’s decision and this leads to bigger losses than paying Masimo, I wonder what would happen the people involved in the decisions.
There's a chance. This is likely Apple exhausting options before it settles into a licensing deal. First you try cease-and-desist, then appeals, then settlement, then import restriction negotiation, etc. Obviously Apple does not want to pay a fee per watch for the technology. They say they're going to try to fix it in software, Masimo says it's a hardware thing.
Apparently this whole thing happened because Masimo started selling a watch and Apple brought a suit against it and the ruling didn't go their way.
Is it worth the long term increase in cost if Apple pays Masimo? It's not a one off where you just pay up to continue operations. Pay one and many more will line up. I am sure Apple's analysts already have a number for how much profit they'd slough off if they pay off Masimo and many more follow.
> I am sure Apple's analysts already have a number for how much profit they'd slough off if they pay off Masimo
Apple famously does not budge on their margins. If forced to pay a license fee, prices on these models will absolutely go up. Sale stoppage + this news cycle allows them to reset pricing when they start up again, without making consumers too mad.
They do not. Massimo's relevant patents have to do with their signal processing on user-worn devices. Cheap oximeters are clip-ons that only do rudimentary processing with strong beams of light through the fingers.
Patent laws really are so strange. Two people had an idea in 1989 (over a decade before I was born) and as a result, I am not allowed to build a product using that idea and sell it, even if I independently reached the idea myself. I think in an ideal world, we would have intellectual rights and patents, but for a vastly reduced scope of time.
You come up with an amazing breakthrough that will alter the world? Congratulations, it's yours for 10 years to do what you want. After that, it's fair game. Innovate or die.
But the amount of processing necessary to trigger the patent is "any amount more than zero". Here's what claim 19, which Apple was adjudged to have indirectly violated, says about processing:
> [the user-worn device comprising, among other things: ] 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.
So if your device includes one or more processors, and those processors aren't just decorative, you're in violation. What processing you do is not relevant; what's patented is that you do any processing of any kind.
Note that Apple's violation does not seem to have been related to data processing; they were adjudged to have directly violated claim 22, which is the device described in claim 19 plus a series of modifications and/or clarifications, of which the modification/clarification unique to claim 22 has to do with the configuration of the LEDs in the device.
If the problem had to do with their data processing, they probably would have been found in violation of claim 19 instead...?
The independent claims in that patent seem to exactly describe technologies from the 1970’s, except that the detector is flat and uses 4 LEDs. The Massimo page you cite claims they invented their signal processing technique in 1989, and Wikipedia says they shipped it in 1995.
The patent you cite was filed in 2009, and is set to expire in 2028. Patents only are supposed to last 17 years in the US, not 39 years.
Anyway, the clip on one’s probably don’t use the algorithms from 1989 or and whatever is in the patent, since the innovation was using a flat detector instead of a clip. Clips were working fine for 20 years before SET.
> 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.
> 28. [This is one of the base descriptions; too long to pull as a quote.]
> 12. The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation.
> 24. The user-worn device of claim 20, wherein the protrusion comprises opaque material configured to substantially prevent light piping.
> 30. The user-worn device of claim 20, wherein the protrusion further comprises one or more chamfered edges.
The easiest way to avoid this set of patents appears to be to use less than three LEDs. I assume that will produce a more unreliable reading, but increasing the number of LEDs does not appear to be considered an "obvious" approach to that problem.
More than four would increase cost and wouldn’t necessarily be more accurate. I believe each LED emits Red, Blue or Infrared.
But these Apple Watches are not approved by the FDA as medical devices and are less accurate than a pulse oxomiter. Even FitBit doesn’t try to fool anyone.
So what’s the real market to add in measuring oxygen levels? Wellness? You have to not move to use it and we already know the measurements are not accurate.
Feels like they added it to sell more watches and seems like they really bought the farm this time
Or trifling matters like clips working on an entirely different principle (transmission vice reflection) than the method which remains patent encumbered.
Not really. $15 pulse oximeters on Amazon are coming straight out of China from fly by night companies in a country that doesn't particularly care about IP law, and even when they do make it amazingly hard for a foreign company with even the most absolute, solid, novel patents to fight against a Chinese company blatantly and openly infringing.
Trying to frame this as a money grab from Masimo is overly defensive of Apple.
Apple certainly isn’t a an innocent player here (they have shut down competitors with bogus patents), but that doesn’t mean the system isn’t completely broken.
The import ban is due to them using a technology that was invented in 1935, then improved to more or less match what Apple shipped in 1970. Ironically, the inventor from 1970 opted not to patent it. The history section of this article has a good overview: https://en.m.wikipedia.org/wiki/Pulse_oximetry
On top of there obviously being prior work, the “court” that blocked imports is part of an expedited process, so even though the real court will definitely consider invalidating the patent (and will probably invalidate it) that hasn’t happened yet.
There are good examples in this discussion of Apple using equally bogus patents to block imports, but I hope something (maybe this case) becomes a poster child for this sort of legal abuse, and leads to real reform.
I generally agree when how bogus this kind of thing usually is is brought up but in this case I'm not sure I can agree what happened here was fair play tarnished by misguided law after reading the backstory these past few weeks. The rub between the two here isn't pulse ox was used at all it's a specific implementation of a certain part of several patents Marino claims Apple stole when they were working together then abandoned the relationship. This isn't something where Apple did something obvious in a vacuum and suddenly a troll came out of the woodwork. "Prior work" doesn't mean someone did light based pulse ox before it means the specific implementation which improves it was already known and in use at the time the patent was filed, which is not the case here.
There was no partnership as far as I know. Masimo met with Apple's M&A team, they didn't do a deal, then Apple hired Masimo employees to do it themselves.
This complaint of Apple meeting with some company and then stealing their technology is the narrative put forward by every company or VC that meets with Apple and doesn't result in an acquisition. As if it's impossible to know who to hire from LinkedIn, patents, knowledge of the field, etc.
Those dates are all incorrect (or at a minimum not applicable). As is stated in the cited Wikipedia article, those dates are for detecting pulseox via transmission of light through a thin part of the body, such as a finger or ear, as opposed to reflectance. Reflection pulse oximetry from a thick part of the body, such as a wrist, is a much more recent invention and is the subject of these patents.
Why do you think that a District Court will invalidate the parents? The ITC determined they were valid, and they’re a competent specialized court that deals exclusively with this sort of case.
Did they patent pulse oximetry, though? The referenced patent seems to be for their specific detector design and signal processing method. https://patents.google.com/patent/US10912502B2
That’s how patents always work; the concept cannot be patented, it’s the method which is. Garmin for instance has their own (patented) method which works differently from the infringing Apple implementation.
You are correct and OP is burying the actual crime. OP is correct, however, that this is Apple's SOP as well. They don't amass tens of thousands of patents for the joy.
There are other watches with this. Withings is FDA-approved. Garmin and Samsung have several models. There are non-Apple watches which will pair with iPhones. And there are Apple watches without a blood-oxygen sensor. No big deal.
I haven't dug into this in-depth but from what someone who had mentioned, I think it falls into a very specific approach they're using around an array of 4 sensors which is patented. I suspect other manufacturers use different approaches that isn't patented here. Again, this is secondary information so take it with a grain of salt.
Readit News
So Apple cannot import those watches. They could probably build them in the US (now there's a thought), and injunctions against domestic products are possible but very unusual. Usually there are damages, not injunctions.
It would just be a stopgap solution.
Of course, they'll have run the numbers and the cost of this fiasco is likely many-many orders of magnitude below the savings from using cheap labour.
[0]https://www.theverge.com/c/21507966/foxconn-empty-factories-...
I'm sure almost every state in the US would offer incentives to locate the plant there.
Which is exactly why Apple uses import bans to screw with competitors importing headphones.
Yes. There's a bunch of industries that either can't or don't bother manufacturing in China. The majority of the military industrial complex and much of the biotech/medical equipment industry, among many others. The former for natsec reasons and the latter because even after 20 years QC is still a shitshow.
The problem is how spread out the industrial capacity is. In Shenzhen you can walk from the factory to a giant bazaar with every electronic part you could think of available to buy then and there in reel quantities. You can walk to any of hundreds of other factories and talk to the people on the floor to help design parts for their process. When the part is ready, they can courier it over to you within an hour.
The cost of labor doesn't help either but at Apple scale, US companies would figure it out.
Yeah, it would cost them a boatload and introduce delays. Boo hoo, I feel so bad for them. /s
I'm sure this kind of analysis must be out there, but I searched through a couple of posts and lots of comment threads and primarily saw a lot of conjecture but no actual references to what was really under debate.
[0] https://www.masimo.com/
“In the first two weeks that Lamego was at Apple, he filed 12 patents for medical and sensor technologies for the Watch. Though he would only stay at the company for six months, Lamego would be named as an inventor on many more.”
https://www.latimes.com/business/technology/story/2023-10-05...
You can be sure the issues of novelty and non-obviousness were argued there. Does that mean they'll be clear to you? Heh.
Pro tip: the history is in reverse chronological order. Any doc that's only one page, you can probably ignore. All the arguments are in multi-page PDF's.
- "Multiple wavelength sensor substrate" https://patents.google.com/patent/US7761127B2/en
- "Physiological monitoring devices, systems, and methods" https://patents.google.com/patent/US10687745B1/en
- "User-worn device for noninvasively measuring a physiological parameter of a user" https://patents.google.com/patent/US10945648B2/en, https://patents.google.com/patent/US10912502B2/en, https://patents.google.com/patent/US10912501B2/en
Apple appeals US ban on Apple Watch - https://news.ycombinator.com/item?id=38773177 - Dec 2023 (83 comments)
Apple is officially no longer selling the newest Apple Watch in America - https://news.ycombinator.com/item?id=38771436 - Dec 2023 (108 comments)
Apple to Halt Watch Sales as It Prepares to Comply with U.S. Import Ban - https://news.ycombinator.com/item?id=38684156 - Dec 2023 (14 comments)
Apple to halt Apple Watch Series 9 and Ultra 2 sales in the US this week - https://news.ycombinator.com/item?id=38682631 - Dec 2023 (482 comments)
Apple Watch violates patents held by Orange Co. tech company, ITC finds - https://news.ycombinator.com/item?id=38059668 - Oct 2023 (104 comments)
Apple Faces Potential Watch Import Ban After Federal Trade Ruling - https://news.ycombinator.com/item?id=38034964 - Oct 2023 (46 comments)
I wonder if Apple preemptively imported a ton of watches for resale, to give them some breathing room. I imagine the post-Christmas period is relatively slow, and they’ll likely refresh the watches in May. Would it be possible for them to stuff the resale channels with 3 months of inventory, and then just move to a new generation of watches at WWDC?
I am curious why that didn’t happen. If this is an exec’s decision and this leads to bigger losses than paying Masimo, I wonder what would happen the people involved in the decisions.
Apparently this whole thing happened because Masimo started selling a watch and Apple brought a suit against it and the ruling didn't go their way.
I don't think many of us have ever seen this step.
Apple famously does not budge on their margins. If forced to pay a license fee, prices on these models will absolutely go up. Sale stoppage + this news cycle allows them to reset pricing when they start up again, without making consumers too mad.
https://www.masimo.com/technology/co-oximetry/set/
https://patents.google.com/patent/US10912502B2/en (this is one that was cited by the trade commission.)
You come up with an amazing breakthrough that will alter the world? Congratulations, it's yours for 10 years to do what you want. After that, it's fair game. Innovate or die.
> [the user-worn device comprising, among other things: ] 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.
So if your device includes one or more processors, and those processors aren't just decorative, you're in violation. What processing you do is not relevant; what's patented is that you do any processing of any kind.
Note that Apple's violation does not seem to have been related to data processing; they were adjudged to have directly violated claim 22, which is the device described in claim 19 plus a series of modifications and/or clarifications, of which the modification/clarification unique to claim 22 has to do with the configuration of the LEDs in the device.
If the problem had to do with their data processing, they probably would have been found in violation of claim 19 instead...?
The patent you cite was filed in 2009, and is set to expire in 2028. Patents only are supposed to last 17 years in the US, not 39 years.
Anyway, the clip on one’s probably don’t use the algorithms from 1989 or and whatever is in the patent, since the innovation was using a flat detector instead of a clip. Clips were working fine for 20 years before SET.
The relevant patent claims are identified:
> the Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent.
(Many more claims were included in the complaint, but Apple didn't lose on those claims.)
These are the '502 and '648 patents:
https://patents.google.com/patent/US10912502B2/en
> 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.
> 28. [This is one of the base descriptions; too long to pull as a quote.]
https://patents.google.com/patent/US10945648B2/en
> 12. The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation.
> 24. The user-worn device of claim 20, wherein the protrusion comprises opaque material configured to substantially prevent light piping.
> 30. The user-worn device of claim 20, wherein the protrusion further comprises one or more chamfered edges.
The easiest way to avoid this set of patents appears to be to use less than three LEDs. I assume that will produce a more unreliable reading, but increasing the number of LEDs does not appear to be considered an "obvious" approach to that problem.
But these Apple Watches are not approved by the FDA as medical devices and are less accurate than a pulse oxomiter. Even FitBit doesn’t try to fool anyone.
So what’s the real market to add in measuring oxygen levels? Wellness? You have to not move to use it and we already know the measurements are not accurate.
Feels like they added it to sell more watches and seems like they really bought the farm this time
Trying to frame this as a money grab from Masimo is overly defensive of Apple.
The import ban is due to them using a technology that was invented in 1935, then improved to more or less match what Apple shipped in 1970. Ironically, the inventor from 1970 opted not to patent it. The history section of this article has a good overview: https://en.m.wikipedia.org/wiki/Pulse_oximetry
On top of there obviously being prior work, the “court” that blocked imports is part of an expedited process, so even though the real court will definitely consider invalidating the patent (and will probably invalidate it) that hasn’t happened yet.
There are good examples in this discussion of Apple using equally bogus patents to block imports, but I hope something (maybe this case) becomes a poster child for this sort of legal abuse, and leads to real reform.
This complaint of Apple meeting with some company and then stealing their technology is the narrative put forward by every company or VC that meets with Apple and doesn't result in an acquisition. As if it's impossible to know who to hire from LinkedIn, patents, knowledge of the field, etc.
Like literally, we are arguing over the vector of the light?
this is an interesting point, but what are some examples?