U.S. judge rules Apple Watch infringed Masimo's pulse oximeter patent | Hacker News Reader

U.S. judge rules Apple Watch infringed Masimo's pulse oximeter patent

reuters.com

94 pointsbj-rn42 comments

The report described a dramatic case wherein Apple reportedly had met with Masimo and was interested in a deal to incorporate their advanced technology associated with what became the PPG sensors on the backside of the Apple Watch. Yet once Apple met with Marcelo Lamego the Chief Technical Officer and Research Scientist of Cercacor and Michael O’Reilly, its Chief Medical Officer and Executive Vice President for Medical Affairs, they poached the two employees in order to cut Masimo and Cercacor out of any deal and royalties.

https://www.patentlyapple.com/2020/09/apple-sued-a-second-ti...

This article has a bit more detail https://news.bloomberglaw.com/ip-law/apple-loses-first-round...

Interesting bit from this article:

> In November, a California federal judge ruled that a former Masimo engineer stole trade secrets related to Masimo’s pulse oximetry technology. The judge blocked US sales by True Wearables Inc.—a company launched by the engineer after a stint at Apple—of the Oxxiom device “in its current iteration that includes the trade secrets.”

Does anyone have access such that they can put things on archive? Bloomberg put all the details behind their paywall.

Here's the actual patent, unpaywalled:

https://patents.google.com/patent/US10945648B2/en

Claim 1 (as claim language goes, this isn't too bad):

1. A user-worn device configured to non-invasively determine measurements of physiological parameter of a user, the user-worn device comprising:

a plurality of light emitting diodes (LEDs);

four photodiodes configured to receive light emitted by the LEDs, the four photodiodes being arranged to capture light at different quadrants of tissue of a user;

a protrusion comprising a convex surface and a plurality of openings extending through the protrusion, the openings arranged over the photodiodes and configured to allow light to pass through the protrusion to the photodiodes;

and one or more processors configured to receive one or more signals from at least one of the photodiodes and determine measurements of oxygen saturation of the user.

I hope they license it rather than disable the feature.

Definitely. Disabling it would be a straight up loss for the consumer. I actually only upgraded the watch because of the pulse oximeter - I had a need for it and wouldn’t have been able to justify the upgrade otherwise.

I wonder if my Oura ring also infringes...

https://ouraring.com

https://support.ouraring.com/hc/en-us/articles/7328398760851...

Are they even accurate enough to be useful? Today my Garmin watch told me I was at 85% in the middle of the afternoon when I was feeling pretty good and 100% towards the end of the day when I was feeling a bit tired.

The way I understand it, and I could be totally wrong, that’s somewhere between dead and impossible within the span of 2 hours.

I've found the watch to be within a percent or two of both store bought and hospital based "finger tip" meters.

You get the occasional outliers from a bad reading but in general that's how I've experienced, and I've had nurses and doctors say that they are "good enough".

And yeah in my experience, anything less than 90-93% in a hospital and they will have you on high flow oxygen pretty quick. So 85% as a single bad reading is fine, but a sustained 85% on a watch means you probably want to head to a medical facility.

Note that, like all constant health monitoring with simplistic sensors, no one actually knows if the Apple Watch is good enough for any medical purpose, or potentially actively harmful.

There simply haven't been enough (or sometimes, any) tests comparing what are normal/safe readings for continuous monitoring in normal life settings of many of these parameters, especially for healthy people, and doubly especially for these types of non-invasive simplistic sensors.

Basically, we don't know how much should a healthy person's pulse/SpO2/... as measured with a smart watch sensor vary during the day. We also don't know which values, if any, should be considered emergencies, or which values should scare you into a programmed visit.

Note that over-monitoring is often just as harmful as under-monitoring in medicine, especially give that the vast majority of the population is healthy (so any false positive is likely to affect many more people than a false negative does, even if in lighter ways).

Huh? How do we not know all these things if we can just compare it to a finger tip medical oxymeter ?

Because no one is constantly wearing a finger tip medical oxymeter throughout the day and constantly recording their stats - especially not healthy people.

They're "accurate" when they get a decent measurement, imo.

I can confirm with the other poster, I've found them to only be ~1 or 2 different from other oximeters.

I'd always assume bad read first if you have an outlier.

It seems like the background measurements have a higher deviation from the truth. For example, it will ocassionaly read my oxygen level as <90% and that just seems really unlikely.

If I open the app and stay still for the full 15 seconds the reading seems much more accurate.

Rob ter Horst's (The Quantified Scientist) test results compared against a fingertip pulse oximeter—which include at ground level and on flights—seem to indicate that they're okay for detecting whether your SpO2 readings are normal/abnormal. Basically it seems that if you get a one-off abnormal reading then it's possible for it to be a false positive, while you're unlikely to consistently get false positive results.

See the video for the Apple Watch Series 6 [0], and Series 7 [1].

There's also tests for the Series 8 [2], although it doesn't include data collected in a low oxygen environment.

[0] https://youtube.com/watch?v=8HIcwMhEny0

[1] https://youtube.com/watch?v=EI-Bsvo7sHs

[2] https://youtube.com/watch?v=u8XbiWIUW4s

Wrist oximeters are fairly useless for most people. The Garmin devices can generally only get an accurate measurement if you hold perfectly still and have the band fastened tightly.

The main use cases are for detecting sleep apnea and high altitude hypoxia. If you aren't subject to those issues then you can just disable the pulse oximeter to save battery life.

Is there room for "convergent evolution" with patent law? It seems to me that the odds of developing similar systems are very high if two companies with light based sensors try to develop pulse oximetery.

Nope, you need to be quick to file.

There is, however, an exception: if an invention is likely to be obvious to a person skilled in the art given access to prior art, the invention is not considered not patentable

That exception is laughably weak in bleeding edge fields. That is, if "skilled in the art" is limited in audience, then that someone else "did it first" could be reduced to them being the first to need to do it. Which is terrible in the cases where everyone that goes down a route will have to solve the same problem.

For an in-depth analysis of "obviousness" as it applies to software:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580

"obvious to try" is probably what you're imagining. This is a real legal doctrine, and it's deplorably underutilized with software, as I explain.

I had a patent lawyer read over this carefully, and he took particular interest in the notion that, as he put it, "software engineers have a bag of tricks they use."

We all know that we do. But the legal system needs some kind of official blessing for the contents of the bag, and "our" ACM and IEEE are never going to give us one.

This method fails in fields where the patent office is explicitly forced to avoid hiring people in that field.

So, they cannot reasonably know what prior art might be in that field, if for example they are not allowed to hire anyone with a CS degree, for example.

Yes, that was the case for a long time. Only recently have they been allowed to hire patent examiners with CS degrees.

So, yay -- fucked up USPTO, as per usual.

No. According to patent law, independent discovery does not exist. And should it ever be proved otherwise, thousands of patent attorneys would be found crying on the floor in fetal position.

No. US patent law is quite explicit about that. First to publish wins.

Deliberately infringing a patent can trigger punitive (3x) damages. "Convergent evolution" could be a defence against that kind of claim. That's a reason big-co lawyers tell devs to NOT read other companies patents.

Just to clarify, it's first to file with the patent office, not first to publish publicly, in a journal, etc.

The US used to have a first-to-invent system, but changed about a decade ago. The first-to-file system is more common in other countries, and generally favors large companies since they can spend lots of resources on filing patents.

Public publishing and filing with the patent office do "compete", though there is (or was) a grace period. That is, if you file a patent for something you just read in a journal, the patent office is supposed to discover the paper that was made public before your filing and not grant your patent.

However, I believe there is (or maybe just was?) a grace period of a few months, where you can claim it just took a few months to file and your patent can still be granted even if prior art appeared in these X months between your invention and the actual filing (I have no idea how this is adjudicated).

Patent law should, but does not allow for independent derivation.

It also fails to do anything about patent thickets.

Independent derivation would be the worse possible thing for patents. The ideal solution would be easing the criteria for obviousness, such that credible claims of independent derivation could be used to invalidate the patent entirely.

Otherwise though, the purpose of patent law is to force companies to publish their discoveries instead of keeping them as trade secrets. If a drug company today tried to keep some process or substance as a trade secret, they would run the risk of another company discovering the same process and/or substance and blocking them from producing the thing they discovered first. So, they are essentially forced to publish it.

No mention of Garmin whose main watches all have Pulse ox sensors in them, so either they licensed the tech or they have their own implementation.

I'm glad I couldn't find Garmin here, I love their sensor data.

It seems that the difference is that a previous Masimo employee then worked at Apple, lending credence that the patent was directly violated because they stole Masimo's trade secrets. Maybe Garmin was advised by Masimo (and then subsequently negotiated a license) for the patents? Alternatively, Garmin may have different implementation that avoids the metioned patents.

If it’s patented it cannot be a trade secret. And vice versa. Trade secrets are defined by not having been shared yet, patents are defined by having been published publicly. Patents give you a temporary monopoly in exchange for contributing to public knowledge what might otherwise remain a trade secret.

What is the downside to keeping things as a trade secret? Someone else might independently ‘invent’ the same thing and you’re SOL?

Exactly

More likely they would reverse engineer your product and recreate it. This is more likely for products sold than for internal processes.

There are other ways you can fail to bolt the lid down well enough and the actual secret leaks. You can make all your employees sign NDAs but they still know the secrets. Those employees go and get jobs elsewhere. You can extract some punishment on them for leaking and breaking the NDA (contract law), but once the cat's out of the bag, it's out. If you accidentally leave a laptop on a train, you're done. If a corporate spy targets you successfully, you're done. You can't have copyright on ideas, so if your trade secret is in essence an idea, then people can go and copy the idea.

For a secret that can't easily be reverse-engineered, that means the biggest difference between patents and trade secrets is how long you expect to have a monopoly for. For patents, if you are granted one, then you get a monopoly for exactly 20 years, which for almost any idea is enough time to make a lot of money if it's a good idea or at least get enough of a head start. But once 20 years are up, that idea has been in the open for 20 years already. For trade secrets, the number of years depends on you. Some companies can make it for more than 20 years. Employee retention helps. Spending lots of money on information security helps. Not letting Chinese companies through the door who pretend to want to buy yours, do some due diligence and then back out once they figure out a few of your trade secrets, also helps.

You can selectively have patents for the tier-2 designs and use trade secrets for the tier-1 designs that you wouldn't really want to diverge to the world. It's not mutually exclusive like you're implying here (okay, in the strictest sense a certain part of the invention can only be either be patented or kept secret, but the totality of the device makes it likely that both patented and non-patented trade secrets were used).

Close, but I didn’t say a device has to be either patented or not, only an idea. Again, there is absolutely no such thing as a “patented trade secret”. Just call it an idea.

Hello chollida ,

This might be unrelated to this post , but I just read a post you wrote back at 2014 , talking about how to get a quant job.

And I aspire to be one day in it.

I was an engineering background now current at Risk management .intermediate in python, SQL and shell scripting.

I work in non finance field before and 3 years ago I break into finance by joining a risk consultancy as a data analyst for automation and data centralisation.

Then now I m in a small Investment Bank in market risk as analyst to automation all the report for them.

I m applying for a master of statistics currently

And now I have a dilemma for current next job opportunities. I m Googling around and trying to collect enough data for making career decisions.

1 offer i got : A Swiss asset management firm - Junior trader (no programming , only VBA) and it came with a pay cut as I don’t have direct experience

2 offer in a retail bank: Data engineer with 25 % pay raise doing digital transformation and automation like my first finance related job.

Question: While I m working toward a master degree (part time)

Q1) Would getting offer 2 be putting in a bad track record on CV and driving me away from the path into becoming a quant - who trade

Would getting a data engineer job completely throw me off the path of trying to become a quant in the future even tho I m working on getting a master in statistics and phd after ?

Q2) being now in middle office, would staying in market risk (which I m just doing automation for report ) be better to make a better track record

Q3) would job offer 3 be better while working toward my master in statistics be better in your opinion (pay cut to trade off for experience)

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