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Comment by conjecTech | Hacker News Reader

Isn't there treble(3x) damages for knowingly selling something that violates others' IP? This seems like a risky gambit by Apple. I'm not sure what their endgame is, but having those potential damages stack up in the likely scenario the patent violations get upheld seems like they would be a big deterrent to having Masimo come to the table and negotiate.

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Yes, though it's not a bright-line test for what constitutes 'knowing' infringement. It can be less strict than the phrase suggests — if you had reason to know of the patent, even if you had never looked at it yourself, or it can be more strict — if you infringed a patent you were aware of, but you had received three opinion letters from top law firms saying that your product didn't infringe.

I've heard some companies say that they should never put in writing that they're aware of anyone else's IP, to mitigate the risk of treble damages.

> I've heard some companies say that they should never put in writing that they're aware of anyone else's IP, to mitigate the risk of treble damages.

I've been instructed by a big company to take all possible notes on my own ideas and experiments, and none at all on what information I found elsewhere.

I hear the opposite is true in trading, where to avoid insider trading allegations, you need notes on what publically available information you acted on, even just as "parallel construction" of the trades you were going to make based on insider information.

It's really interesting the kind of world you get when legal precedent is the only unstoppable force.

It isn’t necessarily knowingly if you’re still in the appeals process.

I'm speaking colloquially. I believe it covers exactly this situation.

The ITC doesn't have the power to award monetary damages to Masimo for Apple's alleged infringement. For that, you need to go to court. The ITC is a specialized forum for trade disputes.

Masimo actually did sue Apple in Federal court for damages, but the judge declared a mistrial after the jury deadlocked 6-1 in favor of Apple.

> Maismo actually did sue Apple in Federal court for damages, but the judge declared a mistrial after the jury deadlocked 6-1 in favor of Apple.

To be clear, the mistrial was around "theft of trade secrets", and had nothing to do with the alleged patent infringement.

The jury heard testimony related to patent infringement. It's true that Masimo chose to seek an award for unjust enrichment from trade secret theft instead of damages related to the patents themselves, but that was a strategic choice on their part. They could have requested damages in that same case.

But it does speak to their confidence, or lack thereof, in their ability to defend the patent in question.

Couldn’t same confidence could be said for Apple’s actions? Why continue to GTM with relatively minor feature (it’s not 2020 anymore where everyone was worrying about blood oxygen due to covid) that could be easily disabled by software? My sense is that Apple is really confident that they are not infringing on that patent.

The ITC could have set a bond though - here the bond was set at $0 so there is no penalty for apple importing anyway during appeal.

(Masimo did not ask for seizure yet afaik)

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