Apple has confirmed they’ll be halting sales of the Apple Watch Series 9 and Apple Watch Ultra 2, following a ruling this past October by the International Trade Commission that ruled in favor of a patent dispute with Masimo, a medical technology company (the original judge’s decision was last January, this was an appeal). That company has claimed that Apple violated its blood oxygen sensor technology in recent Apple Watch iterations, including the Series 9 and Apple Watch Ultra 2 (as well as numerous other past units, including the Apple Watch Series 6, Series 7, Series 8, and Apple Watch Ultra 1). This does not impact any sales outside the United States.
Apple had one last option prior to halting sales, which was a presidential veto, but that hasn’t been taken up yet. That Presidential Review Period expires a week from now, on December 25th, 2023.
Halting of Sales:
However, Apple has announced they’ll pull the Apple Watch editions in the US, effective December 21st, 2023 at 3 PM US Eastern from their website. Then by December 24th, 2023, their US retail locations will no longer offer it for sale. Note that this does not impact the Apple Watch SE, which doesn’t have the blood oxygen sensing technology in it.
Now, the sales halt is a bit complicated in the near term, but more clear-cut once we get beyond December 25th, 2023. From now until that point, Apple can continue selling the device to both consumers and resellers (e.g., Amazon, Best Buy, etc…). However, beyond the 25th, Apple is unable to sell the impacted models to entities in the US. However, Apple confirmed this won’t impact 3rd party sales. Thus, any units that retailers have can still be sold after that date (e.g., Best Buy or Amazon can continue selling just fine till their stocks run out).
Apple confirmed to DC Rainmaker, a statement originally given to 9to5Mac, which states:
A Presidential Review Period is in progress regarding an order from the U.S. International Trade Commission on a technical intellectual property dispute pertaining to Apple Watch devices containing the Blood Oxygen feature. While the review period will not end until December 25, Apple is preemptively taking steps to comply should the ruling stand. This includes pausing sales of the Apple Watch Series 9 and Apple Watch Ultra 2 from Apple.com starting December 21, and from Apple retail locations after December 24.
Apple’s teams work tirelessly to create products and services that empower users with industry-leading health, wellness, and safety features. Apple strongly disagrees with the order and is pursuing a range of legal and technical options to ensure that Apple Watch is available to customers.
Should the order stand, Apple will continue to take all measures to return Apple Watch Series 9 and Apple Watch Ultra 2 to customers in the U.S. as soon as possible.
Note that Apple confirmed to DC RAINMAKER there’s no impact to existing/sold units in terms of the feature, it’s not going anywhere, nor being disabled in any way.
The Technology:
The technology in question here is Apple’s implementation of the blood oxygen sensing technology, which Masimo claims Apple first implemented within their Apple Watch Series 6 watches back in September 2020. However, Masimo’s lawsuit actually predates that, instead first launched in January 2020 over other heart-rate sensing portions and a meeting that was previously held between Apple and the company in 2013. The dispute was then brought forward to the International Trade Commission in June 2021. You can see the red pulse oxygen sensor LEDs on this Apple Watch Series 6:
As part of that case, Masimo said Apple had 103 violations across 5 different patents. Keeping in mind that a single patent can have numerous different ‘novel’ things inside of it. We saw this with the Wahoo/Zwift case earlier this year, where a single patent ID has numerous claims within it. In this case, the ITC ruled that only five claims were violated, within two different patents.
From a legal standpoint, there are still a few options left for Apple. Outside of a US presidential review change, Apple says they’re appealing ITC’s decision to the Federal Circuit, and further, a US Trade Representative can decide to disapprove ITC’s solutions for various reasons.
Of course, Apple continues to state that they don’t believe they violated any patents, and further, has counter-filed two patent infringement lawsuits against Masimo a year ago, back in October 2022. As part of that effort, Apple was invalidating Masimo patents based on prior work that Masimo had patented. And in fact, this past September 2023, Apple won an appeals court ruling to invalidate portions of a Masimo patent.
Now, I haven’t dug into the claims deep enough to make an informed decision about Masimo vs Apple. However, lawsuits have long been simmering between various device makers and medical sensor companies over the years. Both Masimo and Philips have had their fair share of attempting to sue or otherwise trigger investigations into Apple, Garmin, Fitbit, and a slate of companies you’ve never heard of. Heck, the two have even sued each other. We saw Masimo sue Phillips over this very blood oxygen-sensing technology a decade ago, winning a $466M judgment (which was eventually settled for $300M).
And, it would seem that Masimo might be gearing up for another round of lawsuits too. A few months ago I received a note from a lawyer representing the company asking for clarifications regarding what I knew about the Epson running watch’s sensor (from this post):
“Hello Ray, My name is Rhett [redacted], and I am an attorney for Masimo. I would like to speak with you about an article you wrote in August 2014 in which you reviewed the Epson Pulsense. Specifically, I am looking to confirm the date and a few other details of your review. We are willing to compensate you for your time at your normal rate. Please let me know if you are available to speak sometime. I can be reached at [redacted]@knobbe.com or 949-xxx-xxxx.Thank you, Rhett [redacted]”
I typically don’t respond to legal requests from any company, so as to not get in the middle of things (and thus, I didn’t respond to this e-mail). Also, I thought it was slightly odd to confirm the date of the review, since it’s plainly listed on the page, as well as not ask about later watches/products with the same sensor in it.
This is notable because, at the time, it was very popular to license optical heart rate sensors from Phillips. However, the Epson running watches were unique in that Epson claimed to have fully developed their optical heart rate sensor in-house (and various discussions I had at the time certainly seemed to confirm that). In fact, their optical HR sensing accuracy was very good for the time in most cases, including in later units. Of course, Epson exited the GPS running market many years ago, after a short attempt (albeit a pretty impressive first go at the time).
Going Forward:
In any case, it’ll be interesting to see how this ends up. Certainly, with both Apple and Masimo having successfully had a few rounds land on each other’s plates recently, they may get to an agreement sooner. Perhaps Masimo thought Apple would come forward with a settlement rather than halt sales. Or perhaps Apple has another sensor option up its sleeve. Certainly, there are other ways to solve this problem, as other companies have shown. And further, this case has been on the slow roll for years since it’s not as though Apple was surprised by it. Perhaps Apple didn’t expect to lose the October ruling.
Either way, if you’re in the US and aiming to pick up an Apple Watch Series 9 or Apple Watch Ultra 2, it’s likely things are about to get scarce quick. Somewhat impressive that retailers are bothering to keep running sales on them. With that – thanks for reading!
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Do you know if Garmin et al license this tech from Masimo or are they likely next targets?
I’d be curious to hear about this too. And not just Garmin of course. I hope DCR has a clearer picture about this. The only thing I could quickly find is that Masimo is not mentioned on their site explaining SpO2 (link to garmin.com). If I recall correctly, before their acquisition of FirstBeat, one could find “licenced by Firstbeat” everywhere in the description of related features. So, I would tend to guess, that they have no contract. Another difference between Garmin and Apple could be, that Garmin may have not started hiring former Masimo employees (which is claimed to be done by Apple). We will see.
Here’s the link:
link to 9to5mac.com
“One 2013 hire, confirmed at the beginning of 2014, was Masimo’s chief medical officer, Dr. Michael O’Reilly.”
Michael showed my a demo of the Apple Watch pulse oximeters a few months prior to its release.
Right then I foresaw this lawsuit.
There are many, many, many many companies that do SpO2 sensing – both in wearables and otherwise. On the wearables front, that includes: Samsung, Fitbit, Garmin, Suunto, COROS, Withings, Google, Huawei, Amazfit, and many more.
There are certainly ways that do it that don’t infringe on various companies patents (both Philips and Masimo).
To the question noted, Garmin actually has their own patent around SpO2 algorithms: link to patents.google.com
And while it’s not necessarily a good look to hire employees from a competitor – that act in and of itself isn’t illegal. Certainly, you can have non-competes, which are incredibly common. But undoubtedly Apple at least waited for those to expire (back then, usually 6mo to 1yr). What can be ‘illegal’ is giving so-called ‘trade secrets’. But, I suspect this is where Apple though they had the legal upper hand in terms of patents that shouldn’t have been valid (and we saw some of that back in September).
Again, the nuances of this particular patent dispute is super high, and the results obviously muddy. How it impacts others, or even Apple/Masimo themselves, remains to be seen.
As local US retailer (Best Buy etc) stock of the affected units starts to run low, I wonder if the used market will get a big increase in what people will want for their used Ultra and such…. it’ll be interesting to see what happens in January and Feb, for ex….
“These watches won’t be on sale after, ummmmmmm… Christmas! You probably better order one now, while you can!”
Shocked. Shocked, I say.
Must be a play by Masimo for licensing revenue. The Masimo wrist device as far as I can tell from their website collects almost exclusively detailed health data, not comprehensive sports information. Also doesn’t seem to have any smart watch features. So even if the Apple Watch didn’t exist Masimo, at least currently, would not sell more devices. As a side note, I am sure Apple wants the legal system to strongly protect its IP but also allow it flexibility versus others. Being Apple’s GC must be a very cool experience.
This has been convered locally by the LA Times (Massimo is right down the street from me in Irvine). The CEO has been going hard after this because (if I recall correctly), he’s alleging that Apple poached a lot of his team after failing to buy the company. I haven’t looked too deeply into the tech specs or patents, but this has been brewing for a long time and Masimo has sunk a lot of money into pursuing it.
That’s no excuse for infringing on parents.
It very much does seem that Apple have been playing very dirty here. If so, I hope they get hit hard, but I have almost no hope of that happening in the US.
The problem is the patent system (PTO) routinely issues patents that should never have been issued. And I’m not just talking about the Masimo ones here that were invalidated back in September, but certainly plenty of Apple patents as well (which, have also been invalidated over the years). I think the majority of people in the tech industry agree the patent system is ‘broke’ (in many ways), how to fix it is where people disagree.
We saw it in the Wahoo vs Zwift case, where the judge came right out and said these patents wouldn’t hold water due to prior art. Probably a leading reason that led to Wahoo fast-tracking their settlement with Zwift, to avoid patent invalidation. From their perspective, better to have a shacky patent, than no patent at all.
As for saying Apple won’t pay because of the US, that too has proven untrue historically. Apple has lost patent lawsuits over the years and paid hundreds of millions of dollars in some cases (per instance). A simple Google search demonstrates that.
Totally agree with your point. I am not against Apple, but I don’t like Apple either. Apple is known historically to have violated patents and most of them look like they did it because they are powerful and have this unstoppable feeling.
Excellent idea!
Do not forget to charge any hospital for the usage of Goldberg leads and separatelly for Einthowen’s leads while making an electro-cardiogram.
Also, all humans for the CO2 emissions and the plants for the photosynthetic reaction…
How to be an American…step12, step13…
link to youtube.com
I was in the market for an Ultra 2. Based on what you know would you recommend getting one now or waiting? Would hate to invest in a technology that will be made obsolete by this suit.
The tech will continue to work just fine, so nothing changes there if you buy it.
Where things go from here for newly made/sold/whatever watches after Dec 25th, are the big question. Will Apple implement a workaround (hardware or software) for watches after that point? Will Apple simply hope to win in other appeals? Or is Apple using this as leverage over Masimo in settlement talks?
Who knows. Well, some people knows, just not peoples outside of Apple’s legal teams.
So even if Apple has to revise the hardware in future iterations to comply with ITC you think they’ll continue to support these noncompliant models in software updates? Or will these models be essentially bricked to the current IOS?
You’re totally good there. To begin, even Masimo isn’t asking Apple to disable it on existing/previously sold models. But then aside from that, neither is ITC – it’s all about *newly* imported/sold watches.
And there’s no risk of Apple bricking these either, because that’d open up themselves to lawsuits forever.
Or is it only a clever move by Garmin to really boost Christmas sales and then announce on December 25th that an agreement has been reached?
For some companies, perhaps, but Apple works to polish their image too much to sink that battleship.
Instead, I’d almost say/guess it’s more of a bluff to Masimo on what are behind-the-scenes negotiations.
I found it laughable that you claimed you don’t respond as “as to not get in the middle of things.” When you frequently posit legal theories and other wise on nearly every lawsuit that hits this space.
And you didn’t really redact his name as the website and his first name make it easy to find.
Maxwell/Mr. T/Maxwell Stevens/Ogger/all the other varied names you use each time you comment here:
1) I posit on legal elements when I understand the concepts super well, as was the case with the Wahoo vs Zwift case. And, as was proved out last year step-by-step, virtually to the letter of how I thought it’d go in terms of the patent elements.
Whereas in this case, I haven’t dug through a decade’s worth of legal back and forth’s on Masimo vs The World’s optical HR sensors, from an actual patent standpoint. Clearly, they’ve had some victories. But they’ve also had a bunch of loses.
2) I wasn’t aiming to redact everything. He put that entire legal request, including full contact details, just straight into the ‘Contact me’ form at the top. However, what I’m not doing, is taking money from legal teams – which is precisely what that lawyer offered.
I’m pretty sure my above text in the post was pretty clear on that. But then again, if there’s anything I know from your comments over the years, you spend a lot of time pretending to be upset (and the remainder of your time changing the name you use each time).
link to youtube.com
I should have used a fake name when posting this.
Ray—fwiw I always enjoy your insights about the business side of tech. I would opt for more rather than less. And in this instance I can imagine the prior art in the area for patent purposes would be enough to give anyone heartache.
is chatgpt wrote that article ? why is ray talk at the third person?
Note that Apple confirmed to DC RAINMAKER there’s no impact to existing/sold units in terms of the feature, it’s not going anywhere, nor being disabled in any way.
Because that’s how you write it, when confirming media names/entities. Pretty standard common practice.
And also one I occasionally use when a given article is expected to have wider reach beyond ‘regulars’, and in particular when I’m also referencing another media entity (9to5Mac) in the article.
Gosh, got some picky commenters here tonight! Keep up the great work. All the best to you and the family for Christmas
Is Sam at position to talk at grammar considering Sam take no time to check at own grammar?
Gotta have a fly in the ointment and these commenters fulfil this role very well…
Thank you for explaining, good article
I guess retailers/webshops abroad will benefit from this some time with sales to US citizens.
Perfectly clear and informative as usual.
Some of the whiners, should just pay for a subscription to DCR instead of wasting everyone’s precious scrolling space and Ray’s time.
Could Amazon theoretically just work around this by selling its non-US stock to US consumers by flying watches in from outside the US and replenishing from Apple abroad (e.g. selling watches from EU fulfilment centres to US customers and then buying more stock from Apple in France or Germany)?
Selling non-US stock to US entities would be messy AF, namely because the Apple Watch still has regional communications chipsets (e.g. a US cellular edition won’t work in Europe, and vice versa).
That said, I’d imagine Apple over the last few months has stocked up large retailers (Best Buy/Amazon/Walmart/etc) in anticipation for this, likely even with clauses that allow those retailers to return massive quantities of them down the line with a far greater timeline than normal.
Apple did confirm to me that US retailers are fully allowed to keep selling the devices, it’s only Apple itself that can’t sell the devices past the 25th.
Thanks! I didn’t know about the comms chipsets, I thought they’d now switched to universal ones.
The extended commercial agreements makes a lot of sense, especially given we’re talking about Apple.
interesting article, Ty. From wider reading, there seem to be deeply entrenched positions on both sides.
Apple Watch sales and profits in the USA must be VERY far from trivial. A cessation of sales can’t last too long.
Apple shares outperformed the NASDAQ slightly over the last month so investors don’t seem too concerned.
It would be interesting to see if the resolution makes it up to the political level (might Apple help fund Democratic election efforts if a veto can be secured) or down to the technical level of disabling spo2 (potentially easy?) or swapping in another component (hard, I would have thought)
While Biden could still overrule it, I’m going to guess it won’t happen. Else, Apple wouldn’t have made these moves.
The last time a US President helped Apple in a similar situation was 2013, where Obama overruled a case involving Samsung, with respect to iPhone’s and iPad’s (link to theverge.com).
But, I think we’d all agree that was a massively different time/situation. First, and most importantly, it was versus a foreign company, versus Masimo being a California company. Thus, people on both sides of the aisle are far more willing to be Team America in those cases. Second, with political sides highly aligned to chantings of ‘Big Tech’ and various alignment, this would be seen in a much different light than a decade ago when there wasn’t such a tie (or theoretical divide) between big tech and one political party.
Current Twitter rumor mill is Apple is looking into disabling it via software for new purchases, but, how that plays out obviously remains to be seen. Also, according to a NYT piece with Masimo’s CEO, there have been no negotiation discussions. So…take that for what you want.
Not sure how much more Apple and it’s employees could donate to Democrats that would change anything. Approx. 95% of Apple and Apple employee political contributions are to Democrat candidates or organizations. Apple contributions are about $2 mil and employees about $1.2 mil each year. I’m guessing you can hardly find a donation from Masimo to anyone. For what it’s worth.
Well, I lied. Found this for 2021 -Medical technology company Masimo contributed $1 million to Biden’s inaugural committee on December 10, according to congressional lobbying records. Maybe Masimo planned for this.
Just curious, how do you know where Apple employees donate? Is that info available somewhere?
The FEC maintains a database here: link to fec.gov
Though other sites do a better job of pulling that data into fancier reports/etc…
Any guesses as to what kind of support there might be for watches purchased (up to) now, particularly if Apple decides to move in some other direction? I hate to think a current Ultra 2 (as an example) might become obsolete even faster than usual if Apple can’t or simply won’t provides updates if/when they move in some new direction sensor-wise. Or is my worry overblown?
Honestly, overblown.
Apple will either disable it for new watches via software, tweak the algorithms to try and make courts happy, or (far down the road) tweak the hardware slightly to appease Masimo/courts. I don’t think it’s likely at this point that Apple is going to pay Masimo (rightfully or wrongfully).
For now, one of the effects is that apple won’t repair any of the involved watches if out of warranty.
Another reason to get this resolved.
Apple really had their hand in the cookie jar here. They hired Masimo’s Medical Director. Shortly thereafter they introduced pulse oximetry into the Apple Watch. I know several of the individuals involved. Apple just needs to negotiate a licensing agreement with Masimo and get on with their business. In all likelihood, the patent infringement related to the technologies described in this paper:
link to ieeexplore.ieee.org
Masimo successfully defended patent infringement by the previous leader in pulse oximetry, Nellcor
link to biospace.com
Time to turn off auto updates on my watch. First Apple might think to “disable” something. Second if my watch fails an update….no chance for replacement until this is over.
The Federal Circuit just stayed the ban so the watches that are the subject of the patent litigation are back on sale
Official statement from Apple is still outstanding, but there are websites stating that Apple is getting rid of the blood oxygen features from those watches to avoid the import ban…
Let’s see whether it will come back at some point.
Yup, been chatting a bit with various entities. Will wait for the court ruling (as early as today) to see. Some interesting language in Apple’s court filing late last night that has me wondering a bit…most of it was marked as confidential, but there’s some odd wording as they worked around a censored section that has me curious.