Updated The game of patent ping-pong over the Apple Watch and Ultra 2 has continued as the phone maker filed an appeal over an import ban of the devices into the US.
The US International Trade Commission (ITC) ruled in October that Apple violated patents covering the measurement of blood oxygen levels. As a result, Apple was banned from importing the smartwatches into America and selling them within the country. Then there was a presidential review period that ended on December 25 without a veto from the Biden administration.
Apple now has to wait until January 12, 2024 for a decision from the Exclusion Order Enforcement Branch of US Customs and Border Protection on whether redesigns of the Apple Watch Series 9 and Ultra 2 will fall “outside the scope of the commission’s remedial orders,” according to its appeal [PDF]. Ie, Apple has to wait until early next year to find out if changes to its watches satisfy officials that the gear is no longer infringing patents, allowing it to sell the things again.
Those remedial orders from the ITC forbade retail sales of the Apple Watch Series 9 and Ultra 2 in the US following the end of the presidential review period, which prompted Apple to proactively make the devices unavailable a few days earlier. Online sales for a pre-Christmas delivery ended on December 21, and in-store purchases stopped on December 24.
The Apple Watch SE doesn’t contain blood oxygen sensing technology, thus it is exempt from the ban. However, in its appeal, Apple described the affected devices as “its two most popular Apple Watch models” despite their comparatively high price tags. In the UK store, the Series 9 starts at £399, and the Ultra 2 begins at £799. The SE can be picked up for £219.
In its appeal, the iGiant said: “Apple will lose goodwill and suffer reputational damage from being unable to provide US consumers with its newest flagship Apple Watch products.”
It also warned of “irreparable harm if the orders are left in place” while requesting an emergency stay on the ban while its redesigns are considered.
While the nature of the redesigns is unclear, Apple will likely attempt to persuade the authorities that a software update will do the trick rather than have to tweak the hardware.
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The dispute has been long-running. Masimo has previously accused Apple of misusing confidential information in the development of health sensors, while Apple has sued Masimo over the infringement of its own patents, and so here we are.
It isn’t immediately clear where Apple will go from here. The approval of its redesign is by no means a sure thing, and the Mac goliath faces other challenges over the health monitoring technology in the Apple Watch. A ban regarding infringements of electrocardiogram patents held by AliveCor is currently on hold pending appeals.
“There’s nothing legally extraordinary about the ITC issuing an exclusion order,” Nicholas Matich, an intellectual property attorney with law firm McKool Smith, said in a Reuters report. “What’s extraordinary here is that the product at issue is high profile and that Apple has chosen to live with the ITC order rather than settle.”
We asked Apple for its thoughts, and Cupertino has yet to respond.
For now, US fanbois keen to spend their leftover Christmas dollars on a verboten wearable can still pick up the device from third-party resellers, such as Best Buy. Otherwise, it will be a case of waiting to see what becomes of the appeal.
Or take the opportunity to liberate your wrist in 2024. ®
Updated to add
Today, a day after the ITC import ban went into effect, the appeals court temporarily paused that blockade, so that’s a win for Apple. The suspension of the ban will remain in place until US Customs determines whether changes made to the smartwatches are enough to avoid patent infringement.
Until then, Apple can continue to import and sell the gear. There are reports the devices will be back on sale online, and already in some physical Apple Stores.