US ban on some Apple Watch sales now in effect
arstechnica.com
arstechnica.com
So Apple cannot import those watches. They could probably build them in the US (now there's a thought), and injunctions against domestic products are possible but very unusual. Usually there are damages, not injunctions.
Of course, a US court in West Texas could issue the same injunction as the ITC.
Intel both has overseas fabs and contracts some parts to TSMC, especially for their latest processes.
I'm pretty sure the dies in Meteor Lake are of Irish and Taiwanese origin, and have nothing made in the US.
Yes. There's a bunch of industries that either can't or don't bother manufacturing in China. The majority of the military industrial complex and much of the biotech/medical equipment industry, among many others. The former for natsec reasons and the latter because even after 20 years QC is still a shitshow.
The problem is how spread out the industrial capacity is. In Shenzhen you can walk from the factory to a giant bazaar with every electronic part you could think of available to buy then and there in reel quantities. You can walk to any of hundreds of other factories and talk to the people on the floor to help design parts for their process. When the part is ready, they can courier it over to you within an hour.
The cost of labor doesn't help either but at Apple scale, US companies would figure it out.
Yeah, it would cost them a boatload and introduce delays. Boo hoo, I feel so bad for them. /s
Which is exactly why Apple uses import bans to screw with competitors importing headphones.
It would just be a stopgap solution.
Of course, they'll have run the numbers and the cost of this fiasco is likely many-many orders of magnitude below the savings from using cheap labour.
I'm sure almost every state in the US would offer incentives to locate the plant there.
[0]https://www.theverge.com/c/21507966/foxconn-empty-factories-...
I'm sure this kind of analysis must be out there, but I searched through a couple of posts and lots of comment threads and primarily saw a lot of conjecture but no actual references to what was really under debate.
- "Multiple wavelength sensor substrate" https://patents.google.com/patent/US7761127B2/en
- "Physiological monitoring devices, systems, and methods" https://patents.google.com/patent/US10687745B1/en
- "User-worn device for noninvasively measuring a physiological parameter of a user" https://patents.google.com/patent/US10945648B2/en, https://patents.google.com/patent/US10912502B2/en, https://patents.google.com/patent/US10912501B2/en
You can be sure the issues of novelty and non-obviousness were argued there. Does that mean they'll be clear to you? Heh.
Pro tip: the history is in reverse chronological order. Any doc that's only one page, you can probably ignore. All the arguments are in multi-page PDF's.
“In the first two weeks that Lamego was at Apple, he filed 12 patents for medical and sensor technologies for the Watch. Though he would only stay at the company for six months, Lamego would be named as an inventor on many more.”
https://www.latimes.com/business/technology/story/2023-10-05...
Apple appeals US ban on Apple Watch - https://news.ycombinator.com/item?id=38773177 - Dec 2023 (83 comments)
Apple is officially no longer selling the newest Apple Watch in America - https://news.ycombinator.com/item?id=38771436 - Dec 2023 (108 comments)
Apple to Halt Watch Sales as It Prepares to Comply with U.S. Import Ban - https://news.ycombinator.com/item?id=38684156 - Dec 2023 (14 comments)
Apple to halt Apple Watch Series 9 and Ultra 2 sales in the US this week - https://news.ycombinator.com/item?id=38682631 - Dec 2023 (482 comments)
Apple Watch violates patents held by Orange Co. tech company, ITC finds - https://news.ycombinator.com/item?id=38059668 - Oct 2023 (104 comments)
Apple Faces Potential Watch Import Ban After Federal Trade Ruling - https://news.ycombinator.com/item?id=38034964 - Oct 2023 (46 comments)
I wonder if Apple preemptively imported a ton of watches for resale, to give them some breathing room. I imagine the post-Christmas period is relatively slow, and they’ll likely refresh the watches in May. Would it be possible for them to stuff the resale channels with 3 months of inventory, and then just move to a new generation of watches at WWDC?
I am curious why that didn’t happen. If this is an exec’s decision and this leads to bigger losses than paying Masimo, I wonder what would happen the people involved in the decisions.
Apparently this whole thing happened because Masimo started selling a watch and Apple brought a suit against it and the ruling didn't go their way.
Apple sits on heaps of cash and could have done the same.
Not always and not for everyone. Follow me: Currently there are two players in this space competing for talent, Apple and Massimo. This competition results in higher wages and more innovation. What do you think will happen to wages and innovation if Apple just guts Massimo(or any other company) and now there's only one player on the market, Apple? Now Apple can pay you whatever they want because you have nowhere else to go.
How do I know this? Because years and years ago, two major semiconductor companies had offices in my home town. And workers would get pay raises by jumping ship between the two. A few years ago, one of the bigger corps. bought the other smaller one becoming an even bigger behemoth, so the offices had to merge, leading to layoffs in the name of cutting the redundant jobs and "optimizing efficiency". What do you think happened to the wages at the new giant company? Did they go up or not?
So, I question the thought process of HNers who support that Apple crushing a smaller player out of a market somehow leads to higher salaries for everyone. If you want higher salaries, you need more players in that market, not one giant monopolist. This isn't Apple vs some equal Goliath like Google or Microsoft who can afford to fight fire with fire.
Aside from the detailed rebuttal someone already gave, can you explain in this world of higher salaries what incentive any company not named Apple/Google/Microsoft would have to bother doing R&D if the big boys can just come in and steal your IP and talent?
It's known in SV as "brain fucking". A lot of big companies do this to small companies where they promise a acquisition/licensing/funding deal in order to get presentations with confidential info on the core tech, and then just use their massive war chest to build that core tech themselves without compensating the smaller player for having reveal the keys to the kingdom.
Like, the whole point of a startup is (often) to get bought by a big player.
But what if the big players learn all they can from due diligence presentations, then poach your tech and talent, and when you complain, it turns into a drawn-out court battle they win because they can afford $billions in legal fees but you can only afford $10's or $100's of millions?
Is there a counter? If there is no counter, why does VC exist at all? If the counter is "don't spill the beans to big companies looking to buy you out," how does any startup ever get acquired?
I don't think many of us have ever seen this step.
Apple famously does not budge on their margins. If forced to pay a license fee, prices on these models will absolutely go up. Sale stoppage + this news cycle allows them to reset pricing when they start up again, without making consumers too mad.
Trying to frame this as a money grab from Masimo is overly defensive of Apple.
They are much more accurate for this reason but also more annoying to wear. I think the only daily-wearable one that works this way is the Oura ring.
I'm surprised how well it still works on a watch though. I never tried Apple's implementation as I don't have an apple phone to pair it with, but my galaxy watch 6's SpO2 works pretty decently compared to a finger clamp one, considering it is much harder to do it on the wrist.
https://www.masimo.com/technology/co-oximetry/set/
https://patents.google.com/patent/US10912502B2/en (this is one that was cited by the trade commission.)
The patent you cite was filed in 2009, and is set to expire in 2028. Patents only are supposed to last 17 years in the US, not 39 years.
Anyway, the clip on one’s probably don’t use the algorithms from 1989 or and whatever is in the patent, since the innovation was using a flat detector instead of a clip. Clips were working fine for 20 years before SET.
You come up with an amazing breakthrough that will alter the world? Congratulations, it's yours for 10 years to do what you want. After that, it's fair game. Innovate or die.
That’s how patents work in the US. You get 10 years with the ability to extend 10 more. There are games to be played with some patents that extend their life (like a new use patent in pharma) but generally these parents for seemingly old things are new ideas about an old thing.
If you want a short fun read on Solar Panels [0] you’ll find a Melvin Severy referenced. That’s my ancestor. We don’t see a penny from his work because that patent is long gone and is just referenced as prior art. Feel free to use it all you’d like.
https://www.smithsonianmag.com/sponsored/brief-history-solar...
USA used to have 'submarine patents' that could appear later, but apart from that there doesn't seem to be any jurisdiction in which a 33 year old patent would still be valid.
I'm no fan of patents, but medical devices/medications are extremely expensive [in the US] to develop.
The parent comment was wrong: a 1989 idea would basically not be under patent past about 2011.
What you're arguing against is corruption, not patents.
The very idea of intellectual property though, you own your mind, you own your thoughts, sure. You can own a document with the details of your idea, and you can physically restrict others from seeing your property. What does it mean for an idea to be property though? Why are government resources invested in protecting something that private companies and individuals have the responsibility of protecting themselves?
How can an individual protect themselves if a big company steals their ideas?
They might have marginally more protection over their ideas than a than a big company can due to leaks, but I dont fundamentally believe that ideas should be protected under the law, assuming a just legal system. I'll break this into 2 parts.
I don't think governments have a great track record of protecting interests, and a theory why. Whatever political system we have, power will centralize in an elite that uses it for their own purposes. Slavery in America was not funded on its merit, it was in fact heavily subsidized at the expense of working americans and the states were turned into fortresses to imprison the slaves. This occured under an arguement that the government should protect private interests. Whatever power you give the government, the elite will steal; an aside, even when the elites are killed in places like russia during the soviet revolution, it was at the behest of a newer and much darker elite; anyways, a corrupt intellectual property system, because government power is prone to capture.
I disagree with the concept that ideas can be owned, as opposed to merely possessed. Allow me to cast abducto absurdum on this, taken to its logical conclusion, does this idea create absurd results? If we were chronically dehydrated in africa, and I figured out how to make a pump to get water, and im willing to make more pumps for trade, would it be reasonable that the rest of the village is going to die of dehydration because you, fully capable of recreating and innovating on the design, were instead bound by intellectual property laws? If that is in fact absurd, then I would like to know what the line is and why.
> [the user-worn device comprising, among other things: ] one or more processors configured to receive one or more signals from at least one of the four photodiodes and output measurements responsive to the one or more signals, the measurements indicative of the oxygen saturation of the user.
So if your device includes one or more processors, and those processors aren't just decorative, you're in violation. What processing you do is not relevant; what's patented is that you do any processing of any kind.
Note that Apple's violation does not seem to have been related to data processing; they were adjudged to have directly violated claim 22, which is the device described in claim 19 plus a series of modifications and/or clarifications, of which the modification/clarification unique to claim 22 has to do with the configuration of the LEDs in the device.
If the problem had to do with their data processing, they probably would have been found in violation of claim 19 instead...?
If you built it with wavelengths that worked, it'd be covered by the patent. If you built it with wavelengths that didn't work, it'd probably be useless.
"It is essential that the broadest reasonable interpretation (BRI) of the claim be established prior to examining a claim for eligibility."
“It is well-settled that mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea”
Flowchart on Pg 19. Section 2016 for the general examination process: https://www.uspto.gov/web/offices/pac/mpep/mpep-2100.pdf
The relevant patent claims are identified:
> the Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent.
(Many more claims were included in the complaint, but Apple didn't lose on those claims.)
These are the '502 and '648 patents:
https://patents.google.com/patent/US10912502B2/en
> 22. The user-worn device of claim 21, wherein the plurality of emitters comprise at least four emitters, and wherein each of the plurality of emitters comprises a respective set of at least three LEDs.
> 28. [This is one of the base descriptions; too long to pull as a quote.]
https://patents.google.com/patent/US10945648B2/en
> 12. The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation.
> 24. The user-worn device of claim 20, wherein the protrusion comprises opaque material configured to substantially prevent light piping.
> 30. The user-worn device of claim 20, wherein the protrusion further comprises one or more chamfered edges.
The easiest way to avoid this set of patents appears to be to use less than three LEDs. I assume that will produce a more unreliable reading, but increasing the number of LEDs does not appear to be considered an "obvious" approach to that problem.
But these Apple Watches are not approved by the FDA as medical devices and are less accurate than a pulse oxomiter. Even FitBit doesn’t try to fool anyone.
So what’s the real market to add in measuring oxygen levels? Wellness? You have to not move to use it and we already know the measurements are not accurate.
Feels like they added it to sell more watches and seems like they really bought the farm this time
The import ban is due to them using a technology that was invented in 1935, then improved to more or less match what Apple shipped in 1970. Ironically, the inventor from 1970 opted not to patent it. The history section of this article has a good overview: https://en.m.wikipedia.org/wiki/Pulse_oximetry
On top of there obviously being prior work, the “court” that blocked imports is part of an expedited process, so even though the real court will definitely consider invalidating the patent (and will probably invalidate it) that hasn’t happened yet.
There are good examples in this discussion of Apple using equally bogus patents to block imports, but I hope something (maybe this case) becomes a poster child for this sort of legal abuse, and leads to real reform.
This complaint of Apple meeting with some company and then stealing their technology is the narrative put forward by every company or VC that meets with Apple and doesn't result in an acquisition. As if it's impossible to know who to hire from LinkedIn, patents, knowledge of the field, etc.
That's misunderstanding the argument: it's not "They poached our employees and that isn't fair!", it's "Clearly our technology was legitimate and innovative, they had to poach our employees to duplicate it!"
It's an argument toward the standing of the patent(s?), not a complaint of unfair trade practices.
This seems a pretty thin argument. Hiring some people who already successfully did it has a higher chance of success than hiring randos, even if they have to do a clean-room re-implementation. So of course you're going to hire them if you can.
That's... literally the argument. If the patent was obvious to a practitioner in the field, you wouldn't need to hire experts. And not just any experts, experts from the company that holds the patent in question!
Honestly this part of the argument seems pretty sound to me. Whether patents should have this kind of power on the whole is I think an excellent question. But given the system we have, as I see it Apple is screwed here. They're going to end up cutting a very big check to get out of this.
I can very easily see a case where it's obvious to anyone who's worked on this sort of device before, but only 1-2 companies make that sort of device, so if you want to hire someone to make that sort of device without starting from literally 0 experience, it would have to be from one of the few companies that have patents in that field.
Once you're talking about specific methods of accomplishing a specific task in a field, there aren't that many experts or practitioners.
You don't win legal cases by resorting to semantic trickery. Clearly the spirit of the law is that "obviousness" should be interpreted generally. If you have some layer of minutiae only understood at an implementation level by a few dozen human beings, it's clearly going to look "novel" to everyone else.
Otherwise everyone in a patent case would throw some obscure genius on the stand to testify "Well, you see, this is totally obvious to me!" and win.
There's a difference between novel and niche in my mind. If you're working for a company that's acquired a monopoly on having enough money to do any work at all on some product, simply because there's not enough demand for it to have active competition, that doesn't seem like it should mean that everything is "novel" just because you're the only group thinking about it. Yes, in this case Apple is the much bigger company deciding to get into the business, but these patents surely would likewise hinder other companies from competing, or even doing their own research into product innovations in this area, for fear of being too close to the existing patents.
Either way, my point was about hiring people, not the patents. Going "they poached all these people so they could steal their patented knowledge" may be true, but if that company is the only company doing any amount of real innovation in that field, you'd also want to hire from them just because you want to hire the best engineers who have experience with those sensors. Even if you were trying to avoid any issue with patent and totally build a unique product, you'd still want to start with people who know the problem space vs. re-training people.
Sorry, that's ridiculous. If you were genuinely trying to avoid IP pollution, hiring employees from existing market leaders is the worst possible strategy.
Again, people are twisting themselves around here. Apple got caught red handed here. Argue, if you must, that the patent is invalid from first principles and that any staff could have done it. But the fact that they went and hired all these folks to do it in the real world absolutely constitutes strong evidence to the contrary.
With the history they have with Masimo, surely the more reasonable explanation is that they saw the tech, thought they could make something independently that was as good or better without infringing the patent, and hired off some of the Masimo folks to help with explicit instructions to try to avoid any overlap with their old patents?
Does Apple have some history of flagrantly violating patents I don't know about? If anything, other folks have pointed out that Apple specifically has done this to other people before, so they're keenly aware of the risks here. I just don't buy what seems to be the conventional wisdom of "haha big company is dumb as bricks". Risking getting a flagship product banned from sale seems deeply unlike Apple's business strategy in general, which makes everyone's assertions that this infringement was intentional, flagrant, and obvious to a layman seem like it must have some fault in it.
They don't really need to be idiots. They just need to trust that there is a reasonable chance that Masimo won't do anything about it and if they do, there is reasonable chance that Apple wins in court and if they don't there might be appeals and if not they might have come up with better non-infringing tech and if not then they can come to license agreement with Masimo. With that train of thought I think its pretty reasonable that Apple acted the way they acted.
You're basically agreeing to the GP's "thin" argument by saying you need people who already successfully did it to have a higher chance of succeeding.
> even if they have to do a clean-room re-implementation
You can't do a clean-room re-implementation if you're hiring people who already worked of the original implementation. Plus clean-room design only circumvents copyright claims. They don't defend against patents.
https://en.wikipedia.org/wiki/1-Click
https://www.eff.org/deeplinks/2015/12/loading-screen-game-pa...
It's simply incorrect to say "concept patents get granted all the time." No, they don't. You patent an invention. The claims on it may be inappropriately broad, but there have always been mechanisms to address that.
Many of the abuses since then have been corrected. That's how the age is relevant.
Like literally, we are arguing over the vector of the light?
Maybe I'm wrong, but I'd love to be on that jury.
this is an interesting point, but what are some examples?
I haven't heard that mentioned--or if it was I missed it.
Perhaps the public should buy the Masimo watch if they appreciate the specific advantages of the specific pulse oximetry technology at question here. While that may satisfy a small percentage of customers whose primary motive is that specific feature, the majority of people I know wouldn't consider that a valid option, since they like the integration with the "apple ecosystem", or similar reasons.
Would it be possible to separate end products from component technology in a way that prevents this? Perhaps by tracking an accounting line for patents internally, then pushing for legislation which requires patent-cost -> end product cost transparency?
That’s literally what Massimo wanted, before Apple bailed on the partnership and poached their employees instead…
The issue here is not that Apple hired them or that Apple didn’t go through with the deal. The issue is that Apple didn’t innovate but instead infringed on someone else’s IP. If you want to see an example of what Apple should have done, go check out the Garmin patents around pulseox.
Edit: People like to dunk on Garmin for being slow to market, while ignoring the degree to which Garmin doesn’t just rip off patented ideas and instead actually innovates.
[^1] https://www.masimopersonalhealth.com/products/masimo-w1
That’s for Apple to ponder and decide how to proceed. They seem to believe there’s no alternative yet.
Patent law is there, because creating original work is costly and can take years in engineering and scientific fields. The patents are there to give a time-window for the people who made the investments to make their money back and get some return on their investment.
I don't think the existence of rare costly outcomes is very good evidence that anything is wrong with the system.
Among high-level players, the vast majority of poker hands ends with an "agreement" about who probably has the strongest hand (i.e, all but one player folds and there's a modest transfer of funds to that player). But in order for that system to work, there has to be a credible threat of a showdown which, from an economic perspective considering just that single hand, is inefficient.
Likewise, the patent system might be good or bad overall, but occasional occurance of costly outcomes doesn't tell us much.
But the medical industry has lawyers as good as yours and bottomless pockets.
Who on gods earth at Cupertino thought the pittance you could save from sherlocking would somehow be more than the revenue from a new iPhone in 2023?
Now you've either got to pay the license or buy the damn company. And you STILL had to admit to wrongdoing in front of the ITC and the world. Any acquisition you seek from now on is going to be a pretty cold reception if anyone cares at all to entertain it.
I wager masimo will license this technology out to every competitor apple has until cooks pushing daisies and then open source it out of spite...or at least thats what I'd do ;)
The article says they rectified the issue in software right away. HTC died off in the US for many other reasons, I severely doubt this was one of them given it could be software rectified.
HTC continued to make many phones ( https://en.wikipedia.org/wiki/Comparison_of_HTC_devices?wpro... ) after this before being bought by Google ( https://www.theverge.com/2017/9/20/16340108/google-htc-smart... )
What killed of HTC’s mobile division was the inability to compete in the market against Google, Samsung and Motorola. I’m sure this case hurt some but given how quickly it was fixed, the import ban was likely very short lived. Especially because they had new phones available almost immediately after.
The patent’s claims seem likely to be further invalidated once it gets to court, but the timing unfolded to Apple’s disadvantage. (Or maybe not, as they managed to hold everything off until after Christmas sales were completed, and maybe managed to get a bump out of the pending ban.)
I generally feel no sympathy or outrage for Apples patent strife. They are often a target not so much because of their bad acts but because they’re wealthy and a big potential payday, but they’re also wealthy enough to defend their interests and the expenses are just the cost of doing business. (Although they are usually much better at preventing this level of chaos, but they pissed off a billionaire by hiring his top staff, so there’s that.)
https://www.vice.com/en/article/9kxzpy/apple-is-still-trying...
No sympathy deserved or earned.
Apple will be fine without watch sales for a long time if needed.
Apple’s under no obligation to offer a settlement.
For sure. But it does counter the suggestion you made that Massimo may have been "holding out" for more money.
>Apple’s under no obligation to offer a settlement.
Agreed. I never suggested otherwise.
If you ask the price to buy my 2005 Honda CRV (license my patent) and I tell you $250K ($250M/yr), many would think I was holding out even if you (Apple) correctly roll your eyes and don’t engage.
The point is… even that preliminary exchange of information never took place. Apple has not engaged whatsoever; There’s been no contact since the original meetings (2013 I think) where they discussed working together. Apple (allegedly) went dark very shortly after and started their own thing.
There would have to be some serious mental gymnastics going on to suggest Massimo was “holding out”.
To use your metaphor; If I’m selling my 1999 4Runner but no one ever approaches me to ask about details (ie price) it’d be very weird to suggest I was “holding out”.
But I do feel compelled to respectfully suggest that the following discussion lacks much in the way of what I would call "flames".