No doubt Apple will appeal when the International Trade Commission bans sales of the Apple Watch Series 9 and Ultra 2 last year. Well, if you have the time, you can now read all 916 pages of Apple’s appeal to the Federal Circuit.
A quick recap: The Apple Watch ban focuses on whether Apple infringes on medical device maker Masimo’s pulse oximeter patent. The International Trade Commission sided with Massimo, arguing that Apple infringed on their patents and that the infringement harmed the domestic industry.
The International Trade Commission is a court-like body that often deals with imported “items” that may or may not violate intellectual property laws. The word “articles” is more important than you might think because the statute that created the ITC provides that it has jurisdiction over “articles.”
Not to get too deep into it, but much of Apple’s appeal revolves around the debate: What is a domestic industry? And which articles? Not only is Masimo primarily known for its clinical pulse oximeters, but it didn’t even have a true smartwatch at the time the complaint was filed, the appeals brief said.
The smartwatch involved is the W1 smartwatch launched by Masimo in 2022. Masimo filed a lawsuit with the ITC in 2021. According to Apple’s brief, Masimo only provided CAD drawings as evidence.Take 2015 as an example ClearCorrect Operating, LLC v. International Trade Commission, the Federal Circuit ruled that 3D models sent over the Internet did not count as “articles” and were not subject to the ITC’s jurisdiction. Basically, Apple tried to argue, in filing its case with the International Trade Commission, that there was no real case — no watch, no “article,” no domestic industry — and therefore the ban should be struck down.
The 916 pages filed today include a 68-page brief, more than 300 pages of ITC rulings under appeal, hundreds of dizzying pages from the patent office, and more.
The biggest takeaway, though, is that Apple seems concerned that if the decision stands, Masimo’s route could become an attractive strategy for others.
“If the Commission’s decision is confirmed, the doors to the agency’s ‘trade forum’ will be open to complainants who lack actual domestic industry but possess compelling creativity and CAD software. This was not Congress’s intent, nor is it covered by the statutory text. Permissible,” the brief reads.
It has reason to worry. At least one other medical technology company, AliveCor, has petitioned the ITC to ban the Apple Watch. The ITC also ruled that Apple infringed on AliveCor’s electrocardiogram technology and issued an import ban. Biden also declined to veto the ban, but AliveCor is currently appealing a ruling by the Patent Trial and Appeal Board that its technology is not effectively patentable.
Currently, Apple is getting around the import ban by selling modified versions of the Apple Watch Series 9 and Ultra 2 that disable blood oxygen technology. It may be a long time before we see any solutions.