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Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 23, Issue 28

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A Christmas Carol for Apple Watches: The Ghosts of Intellectual Property Past, Present, and Yet to Come

By Gregory Bussell

As last-minute shoppers dash to buy gifts for the holidays, they might encounter a snag in their plans as Apple smartwatches become elusive additions to their shopping lists.  This Thursday, Apple is set to cease online sales of their popular Series 9 and Ultra 2 smartwatches, followed by a suspension of in-store sales on Christmas Eve.

The abrupt halt in smartwatch sales stems from an ongoing intellectual property dispute, thrusting Apple into a courtroom battle over proprietary rights to the health monitoring technology featured in their sought-after smartwatches.  Playing the role of the Ghost of Intellectual Property Past in this legal saga is none other than the medical technology company Masimo, whose patents may come back to haunt Apple in its quest for increased Christmastime sales. 

Masimo holds crucial patents pertaining to blood oxygen sensors, specifically U.S. Patents 10,912,502 (‘502) and 10,945,648 (‘648).  The ‘502 and ‘648 patents, filed in 2020, have become the focal point of recent legal proceedings, compelling Apple to remove their smartwatches from shelves during the bustling holiday shopping season.

The Ghost of Intellectual Property Past paid a visit to Apple in October of this year, courtesy of a ruling by the US International Trade Commission (“USITC”). The ruling found Apple in violation of Section 337 of the Tariff Act of 1930.  Section 337 allows the USITC to conduct an investigation to determine whether there is unfair competition in the importation of products into the United States.

Masimo’s ‘502 and ‘648 patents, both entitled “User-worn device for noninvasively measuring a physiological parameter of a user,” disclose inventions that utilize photodiodes and LEDs to conduct physiological measurements such as detecting oxygen levels.  

Facing this legal setback, Apple is poised to appeal the ruling, unless they receive a reprieve from the Ghost of Intellectual Property Present, President Biden, who has the power to bring Apple good fortune this holiday season.  Under the Tarriff Act, the USITC order becomes final after a two-month period, unless disapproved for policy reasons by a U.S. Trade Representative.  

President Biden has delegated the review to U.S. Trade Representative Katherine Tai for consideration. Whether it comes from President Biden or Representative Katherine Tai, Apple awaits a veto that could ultimately allow Apple smartwatches to return to the shelves for those last-minute shoppers.

As Apple awaits the arrival of The Ghost of Intellectual Property Yet to Come, potential buyers may find assurance in making their purchases now rather than waiting for a resolution. In the spirit of seizing the moment, those considering an Apple smartwatch as a gift may find solace in the notion that a timely decision could be the key to securing a smartwatch before they potentially disappear from the market until the expiration of Masimo’s patents in 2028. Time, indeed, is of the essence, for this smartwatch brand.

Greg is an Associate with Fishman Stewart PLLC. Intellectual property law became Gregory’s focus due to its unique blend of creativity, innovation, and legal intricacies. Protecting the rights of creators, inventors, and businesses allows him to be at the forefront of promoting progress and innovation in various industries.


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