Tomorrow, Biden will decide whether U.S. imports of the Apple Watch get banned (Apple Responds)

On Feb 19, 2023

UPDATE: Apple reminded us today that back in December it said. “At Apple, our teams work tirelessly to create the best products and services in the world, with technology that empowers users with industry-leading health, wellness and safety features. While we firmly disagree with the ITC’s decision today, we are pleased that the exclusion order has been put on pause, consistent with past precedent. The patents on which AliveCor’s case rest have been found invalid, and for that reason, we should ultimately prevail in this matter.”

Apple also notes that the two AliveCor patents that the ITC found that Apple infringed on, the Patent Trial and Appeal Board (PTAB) ruled overwhelmingly in Apple’s favor back in December. AliveCor’s appeal of the PTAB’s ruling means that even if President Biden doesn’t veto the import ban, the exclusion order would be on hold anyway.

And Apple received over 500 letters from Apple Watch owners who say that the device saved their lives. In filing its briefs with the ITC, Apple included the letters as proof that an import ban of the Apple Watch would be detrimental to the public interest. And if President Biden determines that an import ban is not in the best interest of the public, he could veto the exclusion order.

Last month an International Trade Commission (ITC) judge ruled that Apple infringed on a patent owned by medical device maker AliveCor with the blood oxygen feature on the Apple Watch. This feature, also known in the medical community as SP02, measures the percentage of oxygen in a person’s red blood cells. A normal person will have a blood oxygen level in the range of 95% to 100%. Lower readings could indicate the presence of one of the following:

Anemia
ARDS (Acute respiratory distress syndrome)
Asthma
Congenital heart defects in children
Congenital heart disease in adults
COPD
Emphysema
Interstitial lung disease
Medications, such as certain narcotics and anesthetics, that depress breathing
Pneumonia
Pneumothorax (collapsed lung)
Pulmonary edema (excess fluid in the lungs)
Pulmonary embolism (blood clot in an artery in the lung)
Pulmonary fibrosis
Sleep apnea

While Apple was cleared of infringing on four other AliveCor patents, the one patent that Apple got busted for using without permission could lead to an import ban that would block shipments of the Apple Watch from entering the U.S. As reported by The Hill, for Apple to have the Apple Watch import ban quashed, it will need some help from President Joe Bilden. And to get that done, the company has turned its lobbying efforts to “extra high.”

Apple could be hit with a U.S. import ban on the Apple Watch or have the president veto it

Apple has reportedly hired Shara Aranoff, a lobbyist with the firm Covington & Burling. Aranoff chaired the ITC during the Obama administration. Priya Abani, CEO of AliveCor, said, “Apple has unlimited resources. They’re gonna go after everyone they can get and that’s what they’re doing. We are just a startup.” AliveCor has filed lawsuits against Apple accusing it of stealing its technology and engaging in “monopolistic conduct.” The company first shared its SP02 sensor with Apple in 2015.

The SP02 sensor on the Apple Watch monitors a user’s blood oxygen level

Eventually, AliveCor created an electrocardiogram (ECG) sensor to monitor heart rhythms which it sold to Apple. By 2018, Apple released the first Apple Watch with an ECG sensor which it created in-house. AliveCor ended up canceling its product. AliveCor’s Abani states, “We come up with new technologies, and instead of the ecosystem letting us thrive and continue to build on top of the innovations we already have, Apple cuts us out up front, steals our technology, uses their platform power to scale it, and now is basically saying it’s scaled so it can’t be cut off.”

As for the import ban, by next Monday President Biden will have to decide whether to veto the import ban or to allow the dispute to continue to the courtroom. You might remember that a similar situation took place in 2013 when Apple was found to have infringed on a Samsung patent by the ITC. But then-President Barack Obama’s administration vetoed the ban which would have affected older models like the iPhone 3GS, iPhone 4, iPad 3G, iPad 2 3G, and iPad 3 which were sold only by AT&T.

Obama’s veto of the ITC import ban was the first by a sitting president in 26 years. The president at the time was Ronald Reagan and ironically, Samsung was also involved. A statement issued by the Obama administration said that it considered the ban’s “effect on competitive conditions in the U.S. economy and the effect on U.S. consumers.”

Here we are a decade later and we have the ITC on the cusp of releasing an exclusionary order that would ban imports into the U.S. of the Apple Watch. The device is the most popular watch in the world and we wouldn’t be surprised to see President Biden use the same reasoning as President Obama did for announcing a veto of the ITC import ban.

A decision is just days away.

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