Apple Accuses AliveCor of 'Brazen' Patent Infringement in New Countersuit

[Pezimak]

Agree w most of your comment except for last paragraph.

Cardia, given that it advertises in prime time is definitely a mass market device.

Your comparison of apple’s multi function watch with cardias single purpose device is inapt both as a Badis for apple abusing market and meaning people buying the Watch meaning people in generally poor health.

You say cardia is recommended by cardiologists, I have no quibble with that but it is also promoted to the general public. It’s this second mass market category that compares to the Watch. Both are an attempt to increase sales by democratizing ekg functionality and the best part of this is that many folks with undiagnosed arrhythmias will detect something and have the chance to see a doctor before a problem strikes.

Yes I agree they promote Kardia to the general public, I've seen them advertise on general television even, but it is still not something people are going to generally buy. Where as an ECG reader has been in every Apple Watch, I guess apart from the SE, since the series 4, and as a result Apple has sold millions and millions and millions of them. I don't think Alivecor will be anywhere near those sales figures. But I could be wrong.
But you would generally buy a Kardia if you need it, you don't buy an Apple Watch generally just for its ECG reader.

Agree they are useful for picking up early heart conditions, but I'd imagine overall it's a pretty small percentage of Apple Watch owners who have a condition? Well I'd hope so at least...

 

[nwcs]

Nice to see how many patent attorneys and judges post here

 

[Crowbot]

It takes a long time to develop medical tech that often has to pass a government certification process.

Yes. The Kardia device is "FDA Cleared", not "FDA Approved". There's a big difference. FDA Cleared means that they have submitted the paperwork to the FDA and that the device has no potential for patient harm. It's interesting that Kardia has listed the device as Cleared for several years now.

 

[dojoman]

Kardia is a joke. I’ve used it to capture SVT episodes it never worked, disclaimer was that it cannot capture heartbeat faster than 150. I used Apple Watch it recorded my symptoms right away showed to my Dr and boom it was fixed with a surgery.

 

[MyOwnDrummer]

It was a personal anecdote and a verifiable timeline, also taking into account the context that AliveCor won the original suit. Apple is countersuing because they originally lost; the court originally ruled that Apple infringed on AliveCor patents. New information that we don’t have yet might change that, but if/until then, I’m going to keep rooting for the little guy.

Why does the ”little guy” deserve a bias in “his” favor?

 

[ericthered926]

Why does the ”little guy” deserve a bias in “his” favor?

Setting aside the details we know that aren’t in Apple’s favor, I’m leery of the tech consolidation we keep seeing with (sometimes multi) trillion dollar companies and billionaires buying competitors, suing them out of existence or relevance, or, from a place of power, proactively creating policies that stop innovative ideas dead in their tracks. The big guy winning seems to lead to stifled innovation, increased profit for stakeholders (which is every business’s primary motivation), and fewer options for us consumers to vote with our wallets.

Tech used to be about competing to have the coolest new thing. Litigation has always been a part of that, too, but it’s a whole different beast now that we’ve let these select few companies grow to the point that they’re so ingrained in every facet of our lives. It’s gotten a lot harder to make something cool or that stays relevant for more than a second unless you’re one of the giants. Less competition is bad for consumers and bad for innovation.

 

[FrenziedEngi]

I have to say considering Kardia were on the market way before Apple was, like a good couple of years, I think I’ll side with Kardia. Apple could easily patent anything they like at any time, and it’s not till someone complains that they get called out.
Kardia are also way better as at first they did 2 lead readings I think and now do 6 lead, Apple has stuck to 1 for years now with absolutely no innovation in its ECG reader. Both are accurate, I only use my Apple Watch though but have considered switching to Kardia for its 6 lead readings.

As an owner of a Kardia 6L device, and also an Apple Watch, I will say the Kardia is really great, but both have their place.

Not only can the Kardia offer "6 lead" recording, but it is also capable of recording and doing analysis when pulse is in excess of 150BPM - the EKG on the Apple Watch seems to prevent analysis above 150 (maybe this has changed for more recent watches). Wanting to do an EKG when your heart rate is high in some situations of abnormal heart beat (like SVT).

The watch is great for convenience (it's always with you on your wrist), but the Kardia data is just better imo. My cardiologist has been impressed with the Kardia 6L and it has been helpful in ongoing treatment.

As far as who patented what first... I guess that is up to the lawyers to figure out. But AliveCor has a legit product that works - and I believe it was available before the Apple Watch started offering EKG function.

 

[Pezimak]

As an owner of a Kardia 6L device, and also an Apple Watch, I will say the Kardia is really great, but both have their place.

Not only can the Kardia offer "6 lead" recording, but it is also capable of recording and doing analysis when pulse is in excess of 150BPM - the EKG on the Apple Watch seems to prevent analysis above 150 (maybe this has changed for more recent watches). Wanting to do an EKG when your heart rate is high in some situations of abnormal heart beat (like SVT).

The watch is great for convenience (it's always with you on your wrist), but the Kardia data is just better imo. My cardiologist has been impressed with the Kardia 6L and it has been helpful in ongoing treatment.

As far as who patented what first... I guess that is up to the lawyers to figure out. But AliveCor has a legit product that works - and I believe it was available before the Apple Watch started offering EKG function.

I know all about SVT, since about 3 years ago? But when I've had attacks I've used my Apple Watch, the pulse reader on the Apple Watch is the same accuracy as those hospitals and paramedics have, I can state that as a fact! But the ecg I've no idea, my cardiologist reads the data I've sent and doesn't really say anything extra. But the data is not conclusive enough to give him any indications it's definitely SVT as its 1 lead only, just based it on my symptoms.
That's partly why I'm incredibly frustrated with Apples almost abandonment of its development in the reader. It does work on higher BPM now, not sure what rate up to though. But they could integrate more sensors not it, instead they have consistently stuck to 1 lead.

With the Kardia to start a reading do you just touch all the pads or do you need to open the app first?

 

[FrenziedEngi]

With the Kardia to start a reading do you just touch all the pads or do you need to open the app first?

Open the app, touch the leads, and the recording goes straight to the phone. I don’t think the device stores anything local.

 

[Pezimak]

Yes. The Kardia device is "FDA Cleared", not "FDA Approved". There's a big difference. FDA Cleared means that they have submitted the paperwork to the FDA and that the device has no potential for patient harm. It's interesting that Kardia has listed the device as Cleared for several years now.

So is the Apple Watch FDA approved? Or only cleared? Also what does FDA approved mean?

Kardia is a joke. I’ve used it to capture SVT episodes it never worked, disclaimer was that it cannot capture heartbeat faster than 150. I used Apple Watch it recorded my symptoms right away showed to my Dr and boom it was fixed with a surgery.

Interesting, my data doesn't show anything apart from my heart pounding away. But the ecg doesn't show anything according to my cardiologist. I've not been offered surgery, have to take a pill everyday. I did change my diet and exercise a lot more since my first attack though.
What Apple Watch do you have? I find my series 4 uncomfortable after a while and was thinking if the Ultra would be better as it's a bit bigger and lighter? Expensive though.

Very interesting user experiences and information on here I wasn't aware of.

 

[iLondoner]

The article opens with a mention of the Apple Watch version of AliveCor's Kardia unit, but their first product that my wife (who has atrial fibrulation) bought MORE THAN SEVEN YEARS AGO was the Kardia unit that was designed to work with the iPhone. We bought a special case for her iPhone 6 so it was always to hand.

I feel Apple has edged AliveCor out of the market they created, and I would be happier if the two companies found a way to work together rather than fighting.

 

[laptech]

Tbh, I’m no patent lawyer, but I was just saying what Apple write in their lawsuit.

Page 2 line 16

For example, in 2008, Apple had already developed and filed for patent protection on specific and foundational technologies pertaining to embedded heart rate and electric cardiac activity monitors.​

​

Page 3 Line 15

Founded in 2010, AliveCor's business has focused on the sale of portable ECG devices which rely on numerous technologies in Apple's iPhone and/or Watch to provide ECG information to AliveCor's customers. Rather than develop its technology from scratch, however, AliveCor resorted to including the very technology that Apple created and patented. This was no accident: AliveCor has long known of Apple's patented technology, as many of AliveCor's own patents cite to many of Apple's patented innovations.​

I don’t pretend to understand the specific patents, and that’s for lawyers and judge/jury to decide. But they’re making a pretty compelling case, but again, that’s what lawyers do, and I bet Apples lawyers are pretty experienced at that.

I have no idea which way they will go.

People could argue that is classic patent trolling at it's best. Come up with a patent, don't do anything with it but use it to stop others from coming up with the same ideas.

 

[ZipZap]

I can't see how Apple could patent anything specific or appreciable in 2008 or even 2010. What apple says and what they can prove in court are two different things.

 

[Crowbot]

So is the Apple Watch FDA approved? Or only cleared? Also what does FDA approved mean?

No, I believe they also only have Clearance. Approved means that the device works as advertised, is effective and poses no harm to the patient. Clearance means mostly that it won't kill anyone. But accuracy is still a question. Cardiologists use things like the Kardia for basic screening. For serious diagnostics, a genuine EKG is required.

 

[falkon-engine]

I like the bluster. But we'll see what a judge thinks.

 

[steve09090]

I can't see how Apple could patent anything specific or appreciable in 2008 or even 2010. What apple says and what they can prove in court are two different things.

They have done several things. They bought patents and were assigned all US rights to those patents, and they have developed the patents and these developments have been included in their patents.

People should just a look at the patent law suit. I’ve linked it again below.

1. Patent 257. “Seamlessly Embedded Heart Rate Monitor”. A system to identify an EKG in an external enclosed system different to the previous method. They outline it very clearly in the document. Page 8.
2. Patent 619 "Electronic Device Having Sealed Button Biometric Sensing System" is a method of waterproofing such device. Page 16.
3. Patent 898 "Wellness Aggregator" has to do with the way in which the data is stored. Page 24. It goes in to great detail about this citing very many examples.
4. Patent 533 "User Interfaces For Health Monitoring" is the way in which hardware and software resolve difficult or problematic measurements. Page 41

People should really read the document before making blanket statements.

I have never even indicated that I am a patent lawyer, yet I will say that I believe it is the responsibility to search patents to ensure you are not infringing. AliveCor may very well have "invented" the same technology that Apple has bought, improved or invented, and it’s not unusual to have 2 different parties inventing the same product. However my understanding is that the Party who has patented the technology first has the rights to that patent. They may have brought these to market prior as well, but that makes no difference. AliveCor should have done it’s due diligence.

People could argue that is classic patent trolling at it's best. Come up with a patent, don't do anything with it but use it to stop others from coming up with the same ideas.

They made the Apple Watch, so I don’t believe it’s patent trolling, or anything like it. They bought the initial patent to have an external device unlike what has been done before. AliveCor has used that technology to bring it product. Apple has no interest in making medical devices where you put your thumb on each pad to get a reading. It’s not a wearable.

As Apple have said before, sometimes they have to wait decades to bring products to life. Now that 3nm chips are being developed, they may have a whole string of products they have had on the shelves. Who knows?

 

[steve09090]

You must not know that the US patent laws changed in 2013 from a first-to-invent to a first-to-patent. You should look into that. Alivecor developed and released their product in 2012, which means their claim falls under the prior patent priority rules.

A first to invent does not mean the first to release. You’re hung up on this release thing. Totally irrelevant. And Apple didn’t invent patent 257.

Prior to issuance, the ’257 Patent inventors assigned all right, title, and interest in U.S. Patent Application Serial No. 14/136,658 to Apple.​

​

If anything it shows us how far ahead Apple are researching and developing their products.

 

[sdf]

Easy for Apple to see every app's source code once it's submitted to the app store so Apple can easily steal the concept.

No. It is, in fact, impossible.

 

[steve09090]

No. It is, in fact, impossible.

This is also nothing about source code or details in the code. At all. It’s about hardware and the way the software is being used/displayed.

 

[BootsWalking]

A first to invent does not mean the first to release. You’re hung up on this release thing. Totally irrelevant. And Apple didn’t invent patent 257.

Prior to issuance, the ’257 Patent inventors assigned all right, title, and interest in U.S. Patent Application Serial No. 14/136,658 to Apple.​

​

If anything it shows us how far ahead Apple are researching and developing their products.

Yet Apple claimed they themselves are the ones who innovated the inventions in question. But that's neither here nor there.

The reason I bring up the release date is because it's clear the development of the technology occurred years before the release, in this case the inventor worked on it for I believe 10 years before the release, so it's more of a guide as to how long and how early they were on the invention.

 

[jlc1978]

Apple isn't a medical device company though, and its ecg reader isn't a medical device. Although it's accurate and certified it's incredibly limited. A doctor would use it as an advice rather then 100% accurate.

I agree, consideringit is a 1 wire device. Some of the docs I worked with had fun looking at it, but they echoed your sentiments on how it hould be used, as did several EMT friends.

Although I appreciate it can take a while to develop a product.

That is a key part of teh patent argument - who was first to invent and when was it filed?

 

[jlc1978]

No, I believe they also only have Clearance. Approved means that the device works as advertised, is effective and poses no harm to the patient. Clearance means mostly that it won't kill anyone. But accuracy is still a question.

It's a bit more comples: Devices are listed by 3 classes, based on the pateint risk. Class III must be approved, which requires manufacturers demonstrate with valid scientific evidence reasonable assurance they are safe and effective for their intended use. Class II generally must be cleared premarket by demonstrating they are substainally equivalent to an already legally marketed device. In essence, this tech has already been proven, we are using it the same way, so it's safe for use to sell it. Class I do not require certification.

Cardiologists use things like the Kardia for basic screening. For serious diagnostics, a genuine EKG is required.

Certainly. It gives a symptom to further diagnose; just s a mechanic might use a code reader to get an idea of why the CEL I on but do further investigation before replacing parts.

 

[Carnegie]

Was it the rounded corner patent?

No. These asserted patents are utility patents. What you're referring to is a design patent. The requirements for and uses of a design patent are very different from those for and of utility patents. A design patent covers purely ornamental elements.

 

[Carnegie]

Interesting what you say in the last paragraph. So possibly Apple cannot claim Alivecor infringes on its actual ECG patents. What did the Alivecor patents relate to that a judge has already Apple infringed on?

Will be an interesting battle to follow, although I'll never forgive Apple if they force Alivecor out of business due to their complete lack of development of their ECG reader.

The asserted Apple patents aren't ECG patents per say. Meaning, they don't specify that the patented inventions only apply as they might be utilized by an ECG. The claims, e.g., don't include limitations requiring a purpose of producing an ECG. But that doesn't mean the inventions - i.e., the devices or methods described - aren't integral to particular ECG embodiments. They very well could be essential to the way some of AliveCor's ECG devices work. (I don't have much insight as to whether they are, in part because I have little idea how AliveCor's devices work.) And I'd say that at least the earliest asserted Apple patent - the one claiming priority to 2008 - seems to me to be essential to how the Apple Watch's ECG functionality works.

As for the AliveCor patents which the ITC ALJ found to have been infringed by Apple, I'd say they are considerably more ECG focused than the asserted Apple patents. They, e.g., refer to ECGs or ECG sensors in all of the independent claims. So even if someone else otherwise practiced all of the limitations of a given claim, if what they were doing didn't relate in any way to ECGs, it's unlikely they'd ultimately be found to be infringing.

All that said, I don't think what you're concerned about is likely to happen as a result of this Apple suit. I suspect this isn't about stopping AliveCor from making its products or distributing its apps. This suit from Apple seems, in conjunction with the PTAB validity reviews currently going on, more like an attempt to gain leverage to force AliveCor to settle and withdraw its actions against Apple.

 

[Carnegie]

It was a personal anecdote and a verifiable timeline, also taking into account the context that AliveCor won the original suit. Apple is countersuing because they originally lost; the court originally ruled that Apple infringed on AliveCor patents. New information that we don’t have yet might change that, but if/until then, I’m going to keep rooting for the little guy.

To be clear, AliveCor hasn't won either of the suits (which I'm aware of) that it has filed against Apple. It filed an anti-trust suit and an infringement suit, but neither of those has gone to trial (or resulted in summary judgment). I believe the anti-trust suit is at the motion to dismiss (a first amended complaint) stage and the infringement suit is on hold pending the outcome of the ITC investigation.

If you're referring to the ITC investigation, the Commission has yet to decide whether to accept the ALJ's initial determination and - if it does - whether to impose any remedy. I think it's doubtful that it would, e.g., issue an exclusion order even if it ultimately decides that Apple infringed AliveCor's patents. Further, even if it does, the President has to decide whether to approve that remedy. And then, of course, there can be appeals to the courts (i.e. the Federal Circuit and the Supreme Court) if the ITC investigation does ultimately go against Apple.

Regardless, the complaint Apple filed yesterday would't be a countersuit to that ITC investigation. It's a district court action. It might be regarded as a countersuit to AliveCor's infringement suit (though it isn't currently styled that way), but as I indicated AliveCor hasn't won that suit.