Sometimes your legal team can’t get everything it wants.
Following up on Tuesday’s story about the International Trade Commission (ITC) blocking sales of the Apple Watch Series 9 and Apple Watch Ultra 2 due to patent discrepancies between Apple and Masimo, the ITC has officially denied one of Apple’s last-ditch attempts to halt the looming Apple Watch Series 9 and Apple Watch Ultra 2 ban. This officially means Apple’s last recourse is for President Biden to veto the ITC’s decision.
According to The Verge, which noticed the filing, the ITC has declined Apple’s request to “stay the remedial orders pending appeal and/or in light of a potential government shutdown.” In short, the ITC will not stop the Apple Watch sales ban while Apple awaits an appeal. Apple first filed this appeal on October 30.
The conflict first surfaced around October given a long-running patent dispute between Apple and medical technology company Masimo around the Apple Watch’s blood oxygen sensor technology.
Per the filing:
“On October 30, 2023, Apple filed a motion to stay the exclusion and cease and desist
orders pending appeal and/or in light of a potential government shutdown. On November 9, 2023, the Complainants filed an opposition to Apple’s motion. On November 20, 2023,
Complainants also filed a Request for Judicial Notice of Recent Regulatory Developments for Masimo W1 Watch requesting that the Commission consider certain documents in making its decision on Apple’s motion.For the reasons discussed in the Commission Opinion issued concurrently herewith, the Commission has determined to deny Apple’s motion to stay the remedial orders pending appeal and/or in light of a potential government shutdown, and it has done so without reliance on the materials of which Complainants requested the Commission take judicial notice.”
The ban could be prevented with the assistance of the Biden administration, which could step in and veto the ITC’s decision. This action would have to occur within the next week, though, as the Presidential Review Period expires on December 25.
Apple could also appeal the ITC’s final decision with the US Court of Appeals for the Federal Circuit once the Presidential Review Period has expired. Apple had previously confirmed that it plans to file an appeal on December 26. Appealing the decision, however, will not delay the ban on Apple Watch Series 9 and Apple Watch Ultra 2 sales and imports.
In the short term, the ban would ensure that the Apple Watch Ultra 2 and Apple Watch Series 9 will no longer be available to order from Apple’s website in the US after 3 p.m. ET on Thursday, December 21. In-store inventory would no longer be available from Apple retail locations after December 24, and customers would have to buy the Apple Watch units on Amazon while supplies were available.
Apple is also rumored to be exploring software changes to the Apple Watch’s blood oxygen sensor that could allow it to circumvent the two Masimo patents in question. Masimo, however, has said that the “hardware must change.”
Stay tuned for additional details as they become available.