AliveCor Files Antitrust Suit Against Apple for Preventing Third-Party Irregular Heart Rhythm Analysis on Apple Watch

[poseidondev]

They did get FDA approval per the article but their complaint is that they are dependent upon Apple devices to trigger their own device's operation and Apple has changes its API so they can no longer trigger that process. If I were making a medical device that was dependent on Siemens imaging equipment to trigger my operation I wouldn't be at all surprised if Siemens unilaterally changed their interfaces either. That would have been a risk I took on by making my device dependent upon another manufacturer without contractual agreements in place to support said interface. They're taking a shot in the courts but it won't work out in their favor.

edit: typo

Not to be pedantic, but the article is wrong. The filing explicitly only mentions FDA clearance not approval.

The two are often confused with one another and marketing often relies on that confusion.

There’s a significant difference between the two. CNET writes about the difference here, but if video is more your thing, Last Week Tonight with John Oliver had an item on it as well.

That said, the difference between the two is irrelevant for the argument you made or the case as a whole, rather a general PSA.

I believe you’re right in that this is going nowhere, not in the least because they saw Epic’s narrow definition of a relevant market that has already been labelled as “novel” and thought “hold my beer” and decided to argue the following two relevant markets in their filing:

ECG-capable smartwatches are a relevant market of their own

This means watchOS heartrate analysis apps constitute a relevant product
market.

The beauty/downside of the American common law system is that you have more flexibility in making novel arguments, and nothing is certain.

That said, it’s highly unlikely that a court will go along with a relevant market consisting only of ECG-capable smartwatches as opposed to smartwatches in general, and it’s even less likely that specifically heart rate analysis apps will be deemed a relevant market.

 

[bsolar]

The other big point that is being missed is product liability - if Apple sells the data and the AliveCor software report a false reading let’s say it reports everything normal but atrial fibrillation is starting, then who is responsible for the potential harm to the customer because of the false reading? Apple? AliveCor?

Theoretically Apple's EULAs exclude any liability for the use of their services and apps. Apple's Developer EULA limit Apple's liability to the refund of the App's purchase price.

I guess AliveCor's own EULAs also deny all liabilities.

 

[ArtOfWarfare]

They did get FDA approval per the article but their complaint is that they are dependent upon Apple devices to trigger their own device's operation and Apple has changes its API so they can no longer trigger that process. If I were making a medical device that was dependent on Siemens imaging equipment to trigger my operation I wouldn't be at all surprised if Siemens unilaterally changed their interfaces either. That would have been a risk I took on by making my device dependent upon another manufacturer without contractual agreements in place to support said interface. They're taking a shot in the courts but it won't work out in their favor.

edit: typo

Apple charges both the developers and consumers - it seems to me that at least one of the numerous transactions that Apple financially benefits from here obligates Apple to not intentionally break their SDK.

 

[Charles50]

Alivecor wants to piggyback on Apple's FDA certification as a medical device. Not going to happen. Good luck with that lawsuit that your $99 KardiaMobile device was destroyed by $500 Apple Watches.

 

[Doc.Tauri]

Well it’s funny you say that, the band had FDA approval years ago

FDA Clears First Medical Device Accessory for Apple Watch®

www.alivecor.com

I was going to say the same thing, but if it has FDA approval why not?

Since when would FDA approval obligate Apple to support it forever?

 

[ClevelandGuy]

Theoretically Apple's EULAs exclude any liability for the use of their services and apps. Apple's Developer EULA limit Apple's liability to the refund of the App's purchase price.

I guess AliveCor's own EULAs also deny all liabilities.

I agree with you about the EULAs but that will not stop wrongful death lawsuits which mean a big payday for the lawyers and relatives of the victim whether it is settled out of court or if it will go in front of a jury who will blame “the big bad greedy corporation“ for the death.

 

[Omenamies]

What a BS from AliveCor, I can import an ECG taken with Apple Watch to Withings HealthMate app for analysis. So, how exactly Apple is blocking competition here?

Why AliveCor didn’t sue Fitbit, Withings or Samsung?

Apple has more money.

 

[theotherphil]

Not sure how companies think it’s a good idea to build their business around another manufacturer’s business.…especially one that doesn’t have a supported aftermarket like the ”Made for iPhone” program. Just because a feature worked when you had your idea, it doesn’t mean it will continue to work or that Apple is obligated to support you going forward.

It boggles the mind that people turn to the courts in lieu of changing their business plan or innovating further.

It’s mirroring the current generation who have never be told ”no”, want everything right now, have been told they can be anything they want to be and everybody gets a reward, whether they deserve it or not.

 

[theotherphil]

No, read the story.
They had FDA approval in 2017.
KardiBand was designed to give better information.
Apple kept moving the goalpost toake it more difficult for their product and software. Then (surprise), Apple came out with a competitive product and made the API such that KardiBand no longer functioned as intended. It was better than Apple.

Apple absolutely killed competition in favor of their own product.

Yep, that’s the allegation. That doesn’t mean it is fact AND we haven’t seen Apple’s reply.

 

[theotherphil]

Yes, there can be if you are found to have monopoly power. Microsoft was forced to do exactly that to settle their case.

”But Microsoft was sued because they bundled IE with windows!” - that’s an incredibly simplistic and factually incorrect view of what happened. MS was a monopoly in desktop OS‘s which is not in itself illegal. What was illegal was using it’s position to coerce OEM’s to pre-install Windows on their hardware at threat of sanctions which further reinforced their dominance. This bundling of IE was tied to Windows which was tied to the coercive tactics used against OEM’s to have Windows pre-installed on every desktop. Then, IE was given access to undocumented API’s that third parties didn’t have access to and the whole shebang was premeditated.

Apple is vertically integrated which makes a big difference here - they ARE NOT forcing other device manufacturers to preinstall either iOS or any Apple service. There are no coercive tactics being used against any 3rd party. They are not a monopoly in any market that they operate and it is LEGAL/ expected that you have a monopoly on your own products and services.


FTC Single Firm Conduct.

Section 2 of the Sherman Act makes it unlawful for a company to “monopolise, or attempt to monopolise,” trade or commerce. As that law has been interpreted, it is not illegal for a company to have a monopoly, to charge “high prices,” or to try to achieve a monopoly position by what may be viewed by some as aggressive methods. The law is violated only if the company tries to maintain or acquire a monopoly through unreasonable methods. For the courts, a key factor in determining what is unreasonable is whether the practice has a legitimate business justification.

 

[Omenamies]

So, to summarize things up: only Apple stole AliveCor’s ECG algorithm, Fitbit, Withings and Samsung did not?

 

[bsolar]

It boggles the mind that people turn to the courts in lieu of changing their business plan or innovating further.

Why? Turning to the court might be the wrong decision if they lose, but that has not been decided yet.

 

[Marshall73]

Is suing Apple a trendy thing right now? It feels like everyone and their grandmother are out suing Apple nowadays.

Apple have buckets of cash, these companies don’t and after 2020 and COVID they see this as an opportunity to get some money for little effort. Their lawyers are probably doing this pro Bono.

 

[theotherphil]

A $10 pulse ox will give you more reliable BPM than an Apple Watch.

It actually won’t as most of those cheap pulse oximeters available from pharmacies and ebay are not FDA approved and the Apple Watch is. FDA approved fingertip pulse oximeters generally start at $200 and go upwards from there. For example, the Masimo MightySat starts at $380+. FDA approval means they are guaranteed to work in a range of clinical conditions….the more expensive ones generally have better performance in low oxygen conditions which are really difficult to detect due to a sharp drop off in arterial partial pressure O2 below 92% SpO2 readings (it‘s not a linear relationship).

If you want to geek out on it, have a look at the oxyhaemoglobin dissociation curve and how it relates to pulse oximetry.

 

[gaximus]

Why is it no big deal when Apple takes a product off their physical store's shelves (or any retailer for that matter), but a big deal when they do it on their digital store?

 

[gaximus]

So Apple is using its monopoly power to dominate the Apple Watch ECG market?

What monopoly does Apple have? Microsoft wasn't considered a monopoly until it had well over 90% market share, Apple is no where near that.

 

[bsolar]

”But Microsoft was sued because they bundled IE with windows!” - that’s an incredibly simplistic and factually incorrect view of what happened. MS was a monopoly in desktop OS‘s which is not in itself illegal. What was illegal was using it’s position to coerce OEM’s to pre-install Windows on their hardware at threat of sanctions which further reinforced their dominance. This bundling of IE was tied to Windows which was tied to the coercive tactics used against OEM’s to have Windows pre-installed on every desktop. Then, IE was given access to undocumented API’s that third parties didn’t have access to and the whole shebang was premeditated.

Apple is vertically integrated which makes a big difference here - they ARE NOT forcing other device manufacturers to preinstall either iOS or any Apple service. There are no coercive tactics being used against any 3rd party. They are not a monopoly in any market that they operate and it is LEGAL/ expected that you have a monopoly on your own products and services.


FTC Single Firm Conduct.

Section 2 of the Sherman Act makes it unlawful for a company to “monopolise, or attempt to monopolise,” trade or commerce. As that law has been interpreted, it is not illegal for a company to have a monopoly, to charge “high prices,” or to try to achieve a monopoly position by what may be viewed by some as aggressive methods. The law is violated only if the company tries to maintain or acquire a monopoly through unreasonable methods. For the courts, a key factor in determining what is unreasonable is whether the practice has a legitimate business justification.

As stated in another post, Microsoft's example was to illustrate what anti-trust can impose to companies found in violation of regulations, not to suggest that Apple will be found in the same situation.

In this case against Apple, the complaint basically alleges that Apple has monopoly power in the market of ECG-capable wearables and that it's abusing said monopoly power to unfairly compete in the market of heartrate monitoring apps in the attempt to squash competitors and monopolize said market.

I'm not claiming that the Complaint's arguments will prevail in court, but if they do (again, a big "if"), they would indeed configure a violation of the very Section 2 of the Sherman Act you cited. The Complaint itself explicitly details in the counts section said violations including the rationale.

 

[Allyance]

My brother was using the two pad external AliveCorp and recommended it to me. So I ordered the unit that went on the watch band, I could not get it to register every time, hit or miss, so they took it back and refunded my money. Then I upgraded my watch with the built in EKG and it works all the time, no problem. I haven't read all the posts in this thread, my experience was their product didn't work as described. Very happy with the AW.

 

[I7guy]

Apple charges both the developers and consumers - it seems to me that at least one of the numerous transactions that Apple financially benefits from here obligates Apple to not intentionally break their SDK.

Costco charges consumers twice. So what’s your point?

 

[1258186]

You can clearly see a pattern to Apple’s actions in this case and others.

 

[1258186]

Is suing Apple a trendy thing right now? It feels like everyone and their grandmother are out suing Apple nowadays.

Apple doesn’t think twice about suing other people so they can’t complain when it comes back the other way.

 

[1258186]

It's nuts. You build your own platform, O/S and now you get sued because you won't give everyone access to your proprietary, hard work. Sounds like all these idiots should go invent their own tech and O/S and stop complaining about Apple's.

Did you read the article or just the headline? They are suing Apple for stealing their IP. That is entirely fair and reasonable.

 

[anson42]

Does that mean i can create a terrible product and sue apple because they have something better?

In theory, you could sue on the grounds that Apple does not allow customers to choose your terrible product.

If Apple had created a watch that did not allow third party apps to be installed on it, meaning it is a closed device, then I cannot see any type of lawsuit against that. If I created a standalone widget that suddenly was the most successful widget in the world, no one can tell me that I need to make it work with something else. But if that widget was working with other products and suddenly I made it stop working that way to my advantage.... possible lawsuit situation, I suppose. Whether suers' could win such a lawsuit depends on the situation.

Now, AliveCor already makes a standalone heart monitoring device whose data feeds into the phone and their algorithms can run against it. Apple has no interference with that operational model. Seems AliveCor wants access to the heart monitoring data captured by the Watch and thus has issues when access is lost. Because very few people would probably buy the standalone heart monitor if they already have a watch on their wrists, I can see why AliveCor fears for their lost revenue (assuming they had anything worthwhile to begin with).

 

[anson42]

Did you read the article or just the headline? They are suing Apple for stealing their IP. That is entirely fair and reasonable.

Just so everyone's clear, there are two lawsuits. The headline refers to suing about the loss of access to heart monitoring data and is largely what the article is about. Later on, there is mention that they sued Apple for stealing their heart monitoring IP in a separate, past filing. Whether any of it has merit the courts will decide.

 

[Altivec88]

What's sad is that AliveCor actually is better, too.

They've been doing this for a long time. Their a-fib detection is superior because it actually analyzes rates that are typical for a-fib, whereas Apple caps their detection to low pulse rates. AliveCor's algorithms have gotten really good and are approved for more diagnoses by the FDA than Apple's.

Tim Cook talks about reading letters of people's lives he's saved, and then they cut out a competitor that actually has a better and less expensive product. How many lives has that impacted?

I am not discrediting what you are saying but if Apple allows AliveCor to this, then they must allow all developers to do it too. What then happens when a crappy knock off developer ends up killing someone with. Nobody goes after the poor unreachable knock off company, they sue Apple for allowing an unsafe app. I totally agree with Apple on this one. Health functionality should be locked down. If AliveCor is so much better at it as you state, then they should have no problem selling their own medical device just like the abundant other ones that are out there.