The Apple Watch Series 9 and the Watch Ultra 2 will be stopped from being sold

Apple isn’t going to sell its cellular data systems: Ben Levi explains why Apple is planning to stop an import ban on the iPhone

Apple has announced that it will pause sales of its two newest Apple Watch models, the Series 9 and Watch Ultra 2, pending an expected ban by the US International Trade Commission. The federal agency is considering a ban because of a dispute over a patent for the technology that Apple uses in the newest Watch models’ blood-oxygen sensor.

This ban is the result of a patent dispute between Apple and Masimo. The latter is known for its pulse oximetry tech, generally referred to as SpO2 or blood oxygen saturation in the wearable world, and it claims that Apple is using that patented technology without permission.

That said, Apple did manage to beat the system once. President Barack Obama stopped an import ban on the phone. At the time, Samsung accused Apple of infringing on its cellular data patents. Levi says that Apple made an argument about the issues of fair, reasonable, and nondiscriminatory licensing. The patents involved were considered standard and essential, and the Obama administration was concerned the import ban would give Samsung “undue leverage.” It only affected the older models of the iPad. The newer iPhones didn’t use an unlicensed device. The Apple Watch does not have any of these arguments.

Ben Levi says that he thinks Apple sees the writing on the wall and is preparing themselves.

The End of the World for Apple: Implications of the ITC Veto Decision on a Sleep Apnea Detector

The removal of SpO2 sensor would not spell the end of the world for Apple. Apple has a lot of features for health and sleep but they are not really helpful beyond determining your nightly baseline. I’m willing to bet the average Apple Watch user forgets that the blood oxygen features even exist.

In October the ITC ordered an import ban and a stop to the sale of products that had already been imported. We’re currently nearing the end of a 60-day presidential review period, in which President Joe Biden or the US Trade Representative (USTR) has the opportunity to veto the ban. If there’s no veto by the time the review period ends, the ban will go into effect.

In this instance, it is unlikely that the President will overturn the International Trade Commission decision, according to Andrei Iancu, partner at Sullivan & Cromwell.

The only real blow for Apple is if the rumors are correct and it’s working on sleep apnea detection. It would be difficult to develop this feature if the sensors were lost. That feature needs a lengthy FDA clearance process. It is very possible that Apple will have a solution by the time consumers receive sleep apnea detection, because it is a medium to long-term concern.

Iancu says that the only thing that will determine if this route will be successful is the specific patent, ITC ruling, and what Apple has planned as far as redesigning the product.

Apple can’t just make a change to the code and call it a day. Masimo claims that the patents are hardware related, so even completely disabling the sensor may not work depending on how the patent is written. Apple could remove it entirely from the design, but that would require mucking around with Apple’s meticulous supply chain and could take some time.

There are some options that would cost Apple money. Apple could work with Masimo on a licensing deal. In a New York Times interview, Masimo CEO Joe Kiani said Apple “had not engaged in licensing negotiations.” It’s an easy-seeming fix, so why not do it? For starters, both parties have to want to settle.

Levi says that every case is different and every patent is different. “Different complainants who bring up a case have got their own businesses, their own products, and those implicate a whole different set of facts.”

Even so, Iancu says everything is working as it ought to. “The takeaway is that the system is working as originally intended. If Apple wants to have its products imported into the US, it should make sure that it comes up with its original inventions and doesn’t plagiarise other people’s technology.