Apple Watch ban: what’s next

An extensive legal battle is brewing after the Biden administration refused to veto the International Trade Commission (ITC) ban on Apple Watch imports.

In December, the ITC ruled that Apple had infringed wearable heart monitoring technology patented by California-based startup AliveCor. Apple currently uses the ECG sensor in question in its high-end Apple Watch models.

US Trade Representative Katherine Tai on Tuesday allowed the ITC decision to pass despite Apple’s apparent lobbying efforts to get the Biden administration to block a possible ban on its popular smartwatches.

From here, the two companies are going to engage in a protracted litigation. Here’s what’s next.

Court of Appeal to decide Apple’s fate

The Department of Commerce Patents and Appeals Board (PTAB) ruled in December that the AliveCor patents at the center of the ITC case were invalid. The PTAB decision postponed the ITC ban on Apple Watch imports.

AliveCor will appeal the PTAB decision, and Apple will appeal the ITC decision. A federal appeals court will ultimately decide whether the Apple Watch faces an import ban.

William Mandir, a partner at intellectual property law firm Sughrue Mion, said appellate courts typically accept PTAB’s decisions about 75% of the time, giving Apple an early head start.

“Overall, it’s an uphill battle that at first glance seems to be in Apple’s favor,” Mandir said. “But you have to really dive into the specifics to see what the merit of the appeal is.”

AliveCor first shared its technology with Apple in 2015 in hopes of partnering with the tech giant.

The startup said that in 2018, Apple introduced Apple Watch models with built-in heart rate monitoring sensors and blocked third-party app providers from accessing users’ heart rate data, forcing AliveCor to cancel sales of its Apple Watch heart rate monitoring accessory.

These claims would be moot if the appellate court upheld the PTAB decision. Apple said in court documents that it first began developing and patenting its own heart monitoring systems over a decade ago.

“The patents on which the AliveCor case is based have been invalidated and for that reason we should ultimately win the case,” an Apple spokesperson said in a statement.

Import ban will not be in the near future

The appeals process is expected to drag on until mid-2024 as PTAB’s total appeal timeline is between 12 and 18 months, according to AliveCor.

This means that Apple Watch models won’t face the import ban for some time, and Apple could explore a few ways to avoid the ban entirely.

AliveCor is pushing for an agreement under which Apple will pay the startup to license its heart monitoring technology. This would have prevented the Apple Watch import ban, but AliveCor said Apple has no interest in a settlement.

“We can give them our intellectual property tomorrow or the next second if they want, but they don’t want to talk. It’s all about litigation, not innovation,” AliveCor CEO Priya Abani told The Hill.

Even if Apple loses the appeal and decides to disagree, the company will still be able to keep Apple Watch sales going by making modifications to the device.

“They would have to remove a feature that was found to be breaking or disabling it. Another option is they can keep the feature if there is a way to redesign it so that it still works but doesn’t infringe the patent,” said Sughrue Mion Managing Partner John Rabena. “The watch is not going anywhere, but maybe the function will disappear.”

Apple Watch has caused other legal problems

AliveCor is filing a separate antitrust lawsuit against Apple that is expected to be heard in early 2024.

The startup claims Apple made software updates to accompany the rollout of its own heart-monitoring app, which prevented other companies from accessing Apple Watch users’ heart rate data, blocked competition, and disabled AliveCor users.

“So with one update, Apple has eliminated the competition that consumers clearly wanted and needed, depriving them of the choice for heart rate analysis that is better than what Apple has to offer,” AliveCor wrote in its report. May 2021 Complaint. “All to add value to a company that is already worth $2 trillion.”

Apple claimed that he is under no obligation to make his platform available for use by another company.

Federal judge in March 2022 ruled against Apple’s filing to dismiss the lawsuit, stating that the intent of the update was to “prevent third parties from identifying irregular heart rate situations and offering competing heart rate analysis apps.”

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Abani said Apple often uses similar tactics with other app developers to stifle competition by burdening users with fewer choices and less innovative technologies. She described the AliveCor lawsuit as a “David vs. Goliath battle” with huge implications for the future of startups in the US.

Apple was dealt another blow last month when an ITC judge ruled that Apple had infringed on pulse oximeter sensors patented by medical technology company Masimo.

This year, the case will go to full commission, where the ITC could impose another import ban on Apple Watch models that use this technology.

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