Apple to Sell Series 9 and Ultra 2 Watches Without Blood Oxygen Feature in U.S. Starting Tomorrow

[ronntaylor]

This will open a consumer class action lawsuit. I want the money back I paid for the feature to work. Rather it’s $5, $10 etc. Principal! One way or another, Apple is going to pay out to Masimo or consumers.

If you already have a watch the feature won't be disabled. If you choose to buy a watch now you're aware that the feature won't be workable. There is no case for a CAL.

"Apple confirmed that the Blood Oxygen app will remain functional on previously-sold Series 9 and Ultra 2 models. The feature will also remain available on Apple Watch models sold outside the U.S., as the sales ban does not apply internationally."

Otherwise, go to several retailers that have the feature turned on with their current supply of Apple Watches.

 

[John-F]

Although the OP states: "Apple confirmed that the Blood Oxygen app will remain functional on previously-sold Series 9 and Ultra 2 models." From an article in Wired dated today (17 Jan 4:27 PM): "Apple has come up with a workaround to disable the offending sensor in existing smartwatches with a software update, and has redesigned the new Watch models to remove the sensor entirely."

So it's not clear if the "existing smartwatches" in the Wired article includes previously sold items, disputing the other article. If that is the case, then avoiding any update to the iPhone Watch app and the watch itself may be prudent. Question: I don't recall if the watch app update is a separate update, or if it is part of an iOS update.

As someone mentioned, if this applies to previously sold units, I would think users could demand a full refund and return the watch.

 

[JPack]

Apple is fighting to have the patents invalidated. As they did with 15 other Masimo patents. Were it not for a single dissenter in the case that went to a jury (6-1 poll in favor of Apple), Masimo's case against Apple would be over. And Apple is chomping at the bit to get its day in a Delaware court for patent infringement they claim against Masimo's watch.

Apple is down to the appeals court for a Hail Mary. Circuit judges lifted the stay today, allowing the ban to remain, suggesting the likelihood of appeal success is low. Anything is possible, but the odds are clearly in Masimo's favor.

 

[ronntaylor]

From an article in Wired dated today (17 Jan 4:27 PM): "Apple has come up with a workaround to disable the offending sensor in existing smartwatches with a software update, and has redesigned the new Watch models to remove the sensor entirely."

Wired updated less than five minutes ago:

10:45 pm. Apple says in a statement that it “strongly disagrees” with the US International Trade Commission's decision, but that it is taking steps to comply with the ban. Starting Thursday morning, new versions of the Apple Watch Series 9 and Ultra 2 without the blood oxygen sensor will be available for sale on Apple's website and in its retail stores in the US. The company also says Watch models with the sensor that have already been purchased will not be impacted.

 

[jz0309]

Although the OP states: "Apple confirmed that the Blood Oxygen app will remain functional on previously-sold Series 9 and Ultra 2 models." From an article in Wired dated today (17 Jan 4:27 PM): "Apple has come up with a workaround to disable the offending sensor in existing smartwatches with a software update, and has redesigned the new Watch models to remove the sensor entirely."

So it's not clear if the "existing smartwatches" in the Wired article includes previously sold items, disputing the other article. If that is the case, then avoiding any update to the iPhone Watch app and the watch itself may be prudent. Question: I don't recall if the watch app update is a separate update, or if it is part of an iOS update.

As someone mentioned, if this applies to previously sold units, I would think users could demand a full refund and return the watch.

there is no "re-designed" new watch, it's a SW "fix" for the existing, yet to be sold, S9 and Ultra 2 that essentially disables SpO2. already sold watches are not affected

 

[ronntaylor]

Apple is down to the appeals court for a Hail Mary. Circuit judges lifted the stay today, allowing the ban to remain, suggesting the likelihood of appeal success is low. Anything is possible, but the odds are clearly in Masimo's favor.

Not true. The appeals court is not a Hail Mary. Not when the one trial in play ended in a hung jury with 6-1 favoring Apple. Not when there is a chance that the patents may be invalidated like the previous 15 Apple fought against. The Appeals Court lifted the stay with this as the final line:

"We reach no conclusion on the merits of the appeal"

Edited to add Florian Mueller's two-cents:

The appeals court doesn't elaborate on the reasons (just lays out the legal standard) to reinstate the Apple Watch ban *but* the specific mention of "the recent [Exclusion Order Enforcement] Branch ruling" (workaround) suggests they didn't get to the merits of the appeal itself.

 

[technole]

So disabled by effective/activation date, easy enough to implement.

 

[Flood4]

After all these years, I still have no clue what the O2 sensor if for!

 

[JPack]

Not true. The appeals court is not a Hail Mary. Not when the one trial in play ended in a hung jury with 6-1 favoring Apple. Not when there is a chance that the patents may be invalidated like the previous 15 Apple fought against. The Appeals Court lifted the stay with this as the final line:

That simply shows how difficult it would be for Apple to win. The 15 other patents are assessed individually on its own merits and doesn't say anything about the 502 and 648 patents. Masimo just needs one patent to stick.

The Appeals Court doesn't make a conclusion, but it's one of four deciding factors whether the ban is lifted.

 

[AlastorKatriona]

Correction: they will sell it with the feature disabled. Which means at any point in the future when they settle this issue, they can and will enable it for all users.

 

[GMShadow]

The two patents - 10,912,502 and 10,945,648 - have already been found to be in violation by the ITC. That's why we're at this point in time with a ban in place.

You make it sound like there's some future court date and another magical opportunity to have a different ruling.

ITC bureaucrats can barely read, their opinion actually doesn't matter. The other patents are still being litigated.

 

[deconstruct60]

Apple Watch Series 9 and Apple Watch Ultra 2 models will be sold without the Blood Oxygen feature in the U.S. starting on January 18, according to 9to5Mac's Chance Miller, allowing Apple to avoid a sales ban on these models.

Will they???? Masimo has a HARDWARE patent. If the hardware is still there patent still applies. Apple is playing a game of "Emperor new clothes" ... pretend the hardware isn't there so no issue. They are still 'naked' here.

Even if the court lets Apple get away with this 'hand waving' tap dance around the issue, if Apple looses eventually then the punitive damages even bigger. This is all being done so they can just flip it back on again later. The hardware where is still being made. ( Apple kind of locked it in the car trunk and applied some scotch tape to the trunk to not open it. )

Pretty good chance Masimo is to going to go right back to the court saying that Apple is just thumbing their nose at the court order in defiance. Apple will tap dance a story about least harm in the iterium all the while selling the product with a watch with the feature ( "don't worry customers... we'll flip it back on after we steamroll these guys." )

 

[John-F]

Glad to hear reports from Apple indicating it will not impact previously sold watches. But I'm wondering if that has been officially stated by Apple. Writers for publications have their contacts at Apple who give them information, but with this fast-moving story, it would be reassuring to know that comes from Apple officially versus an employee who is giving his thoughts to a writer.

 

[ronntaylor]

That simply shows how difficult it would be for Apple to win. The 15 other patents are assessed individually on its own merits and doesn't say anything about the 502 and 648 patents. Masimo just needs one patent to stick.

The Appeals Court doesn't make a conclusion, but it's one of four deciding factors whether the ban is lifted.

Apple asked for relief (via a stay until their appeal is heard and finalized) to prevent irreparable harm. But they got a work-around in place as required due to the USITC ruling. The Court stopped all work and again, makes no conclusion on the merits of Apple's appeal arguments.

Florian Mueller and IP Fray believes it won't be all to difficult for Apple to beat Masimo. Besides possibly getting the patents invalidated, which could take a year or more, Apple may have another card up it's sleeve:

The most interesting development here would be if Apple submitted in the near term another workaround to CBP’s EOE Branch: one that would provide pulse oximetry, but implement it in a way that can’t be argued to violate the import ban. ip fray has no knowledge of whether Apple has plans for that, but it would be unsurprising. If such a workaround got cleared, the commercial value of Masimo’s patents with a view to Apple would be very low.

The real issues in that case are whether Masimo never was entitled to an import ban (for lack of an actual domestic industry commercializing the invention) and whether Masimo abused the patent filing process. If Apple was right on those two counts, Masimo would have abused the processes of two U.S. government agencies (the United States Patent and Trademark Office (USPTO) and the ITC). It would be desirable for those questions to be addressed by the Federal Circuit.

But if Masimo makes Apple an offer now that it can’t refuse (because the cost would be so low that Apple would rather sell the Apple Watch with pulse oximetry despite hardly any end-user demand), a deal may fall into place. This may be Masimo’s last chance to get anything from Apple. -- ip fray

 

[mdriftmeyer]

Come on Apple. Admit you lost this one and pay the patent. You already pay Cisco millions of dollars a year.

You don't pay the patent. You implement your own patents that offer a novel approach that do not violate any prior art.

 

[jz0309]

Apple asked for relief (via a stay until their appeal is heard and finalized) to prevent irreparable harm. But they got a work-around in place as required due to the USITC ruling. The Court stopped all work and again, makes no conclusion on the merits of Apple's appeal arguments.

Florian Mueller and IP Fray believes it won't be all to difficult for Apple to beat Masimo. Besides possibly getting the patents invalidated, which could take a year or more, Apple may have another card up it's sleeve:

That’s an interesting view point by those guys…
This whole dispute is far from over despite what some here seem to suggest. Like in a soccer game, it’s halftime and Masimo leads 1:0…

 

[ronntaylor]

Will they???? Masimo has a HARDWARE patent. If the hardware is still there patent still applies. Apple is playing a game of "Emperor new clothes" ... pretend the hardware isn't there so no issue. They are still 'naked' here.

Nope. US Customs already checked out the work-around submitted by Apple and gave its blessings to import watches with the sw fix. This portion is over and Masimo has less leverage unless a completely new jury rules unanimously in their favor. And that's only for their case against Apple that resulted in a hung jury. They still have the case Apple filed against them in Delaware as well. IIRC, none of Apple's patents were invalidated and they appear stronger than Masimo's mostly invalidated patents (15 out of 17).

 

[satchmo]

Correction: they will sell it with the feature disabled. Which means at any point in the future when they settle this issue, they can and will enable it for all users.

And if no additional rulings happen in the coming months, I suspect Apple will just drag it out until AW10, make a hardware tweak and be done with this issue.

 

[mikejd1]

A shame. That feature was insanely useful for me in finding out that I had COVID years ago.

I’ll take things that didn’t happen for $200, Ken! 😂

 

[flexwithmarius]

Did you read the article? NEW meaning yet to be sold models

I think he’s referring to models to be released September of 2024.

 

[flexwithmarius]

Although the OP states: "Apple confirmed that the Blood Oxygen app will remain functional on previously-sold Series 9 and Ultra 2 models." From an article in Wired dated today (17 Jan 4:27 PM): "Apple has come up with a workaround to disable the offending sensor in existing smartwatches with a software update, and has redesigned the new Watch models to remove the sensor entirely."

So it's not clear if the "existing smartwatches" in the Wired article includes previously sold items, disputing the other article. If that is the case, then avoiding any update to the iPhone Watch app and the watch itself may be prudent. Question: I don't recall if the watch app update is a separate update, or if it is part of an iOS update.

As someone mentioned, if this applies to previously sold units, I would think users could demand a full refund and return the watch.

“Existing” probably refers to any devices that are in the hands of retailers and have not been activated yet. They’ll get a “forced” update during setup assistant similar to that of the iPhone 15 with the device to device transfer bug.

watchOS updates are entirely separate. That said, they are dependent on a minimum version of iOS running.

 

[transpo1]

“Existing” probably refers to any devices that are in the hands of retailers and have not been activated yet. They’ll get a “forced” update during setup assistant similar to that of the iPhone 15 with the device to device transfer bug.

watchOS updates are entirely separate. That said, they are dependent on a minimum version of iOS running.

I doubt that’s what it means. “Existing watches” in this context must mean watches already manufactured and imported. It seems highly unlikely if you buy an Apple Watch from Amazon after the deadline that Apple will bork it tomorrow. But who knows 🤷🏻‍♂️

 

[Bawstun]

Looks like the resellers are back in business.

 

[flexwithmarius]

I doubt that’s what it means. “Existing watches” in this context must mean watches already manufactured and imported. It seems highly unlikely if you buy an Apple Watch from Amazon after the deadline that Apple will bork it tomorrow. But who knows 🤷🏻‍♂️

All it takes is a software update payload when it connects to the internet during activation.

Again, they’ve already done this once with iPhone 15 on launch day. And they built a system to update boxed iPhones in-store for future instances.

 

[Sean Patrick]

So will Apple be reducing the price now that they have less features??