Lots of confusion about what this reworked feature is, how it works, and why it had to be this way/how we got here now. I'll summarize:
Masimo sued Apple, and mostly lost, but the jury was hung instead of coming to a decision (1 juror out of 7 decided for Masimo). Apple kept selling watches with the SpO2 feature until Masimo got the ITC to agree to an import ban, which is not as easy to appeal because it's through regulators, not the judicial system. Apple did appeal, but were unsuccessful, so they had to remove the SpO2 feature from new watches sold after a certain date, which they did in software. Apple also tried to negotiate with Masimo, but Masimo reportedly asked far too much (rumors of $100 per watch went around, but I cannot verify that) to license the patent.
Fast forward to recently, the ITC made a decision recently that clarified how Apple could implement the feature differently in order to avoid the ban. Before this decision, there was no allowable option for Apple to re-implement blood oxygen sensing in the watch. The new rule allows Apple to use the sensors in the watch to collect and send the necessary data to an iPhone, and it has to be processed and shown there, but not on the watch. Apple didn't "wait" to implement this feature for no reason, it had to be explicitly allowed first.
As a patent attorney myself I’ll say that Masimo likely has a strong case for suing their patent attorneys for malpractice if this sort of what’s know as “joint infringement” stuff with the claims wasn’t explicitly mentioned.
It’s stuff like that which keeps my up at night as they say, and why some inventors think that they can write patent applications themselves… while technically true, the end result can be what a cantankerous well know attorney who led seminars called expensive but ugly wallpaper — yeah, you got a patent, but it’ll be easily designed around (as frankly seems to be the case here) and thus avoided.
Specifically, you want to have claims that are written in such a way that they don’t have to all be performed in a particular place, by a particular party, or on a particular device. Being able to what is known as “working around” a claim by simply shifting where the functionality is performed is the hallmark of an application and that was poorly drafted and/or “prosecuted” (I.e., working with the patent office to get it allowed to issue as a patent).
Often the different devices/places/etc. are used or made by different parties, hence the nomenclature “joint infringement.” While one party can still be “contributorily” infringe the entire claim, it’s not as useful for many purposes.
I’m not familiar with the ITC in particular, but do know that it’s indeed a strange beast, existing in parallel with typical courts which are “Article 3” courts that are part of the judiciary under the Constitution.
The ITC is completely in the executive branch. Its decisions are “appealable” (not technically the correct terminology if memory serves) to the President, and in this case then-President Biden did not “reverse” (again not the technically correct terminology).
With the way that Tim Apple is able to play Trump, if this had all occurred the first time he was president, my money is on the ITC having been reversed. My knowledge of the ITC is sufficiently low that I don’t truly understand why he couldn’t re-review it now. I’m guessing tho that it’s impossible… Apple pays top dollar for their litigation counsel, who would’ve already done this if possible.
Patents in the courts these days are actually of limited value (sadly for me personally). The current makeup of the appellate court — the Federal Circuit — is such that particularly with anything that could be perceived as functional claiming, the patents are held “subject matter ineligible” and deemed “invalidated.”
One case that I personally thought the Supreme Court would take up by “granting cert,” but didn’t, involved a car axel. Its patent was held as “abstract” and thus ineligible by the Federal Circuit. I get why based on how overly broadly the claims were in hindsight years before the law had changed (a weird quirk in US common law…), but their should have been backup “dependent” claims that would have been valid.
That said, the appellate court ruled that the claims merely were an application of a mathematical formula known as Hooke’s Law I believe — even though the claims didn’t mention any math let alone this law, which expresses a natural phenomenon or scientific law or principle.
Anyway, probably a tl;dr for most, but if you wanted a deep dive, well there you go…
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