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Comment by granzymes | Hacker News Reader

And they will likely succeed. In addition to this appeal to the Federal Circuit, which has the potential to pause the import ban for over a year if the stay is extended, Apple is also submitting a proposed software redesign to U.S. Customs and Border Protection.

U.S. Customs will decide on January 12th whether the redesign is sufficient, and if it is sufficient Apple can continue its imports. Maismo would then need to head back to the ITC to argue that the software redesign still infringes their patents. That could easily take another year.

If Apple succeeds in either way, they will be able to draw out the litigation long enough for a full hardware redesign in the Apple Watch 10.

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>"If Apple succeeds in either way, they will be able to draw out the litigation long enough for a full hardware redesign in the Apple Watch 10."

Can they still be sued for the damages caused even if they come up with total redesign?

Yes, for any of the previous infringing watches.

Yes, but not at the ITC, which doesn't have the power to award monetary damages. Masimo has sued Apple for unjust enrichment from trade secret theft already and sought damages, but the jury deadlocked 6-1 in favor of Apple. There's a retrial scheduled for next October and Masimo could add patent damage claims to that case.

The likely reason Masimo made the strategic choice to sue for for unjust enrichment instead of damages is that damages are limited to the license fees Apple would have paid in the alternative world where they sought a license. That's a relatively small amount of money compared to what Masimo is no doubt hoping to extract by blocking Apple Watch imports.

By the way, a court would not have enjoined Apple from importing or selling the Apple Watch. Masimo has a very small domestic consumer-facing industry putting their patents into practice and they they already license their patents to others, demonstrating that they could do so here as well. The ITC was the only place they were likley to get that remedy.

> The likely reason Masimo made the strategic choice to sue for for unjust enrichment instead of damages is that damages are limited to the license fees Apple would have paid in the alternative world where they sought a license.

How can you figure out what that license fee would have been? Couldn't Masimo argue they only would have ever licensed the technology for some huge sum of money?

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