Apple continues to work on a blood oxygen measuring software fix for the Apple Watch Series 9 and Apple Watch Ultra 2, even as it appeals the ban, according to a Bloomberg report.
Bloomberg says Apple’s redeveloped software has been submitted to a US customs agency that could allow it to sell non-infringing versions of the wearables as soon as Jan. 12, all while continuing to appeal the ITC ban.
Apple is “working desperately” to pull all available levers “to try and procedurally shut down the ITC by getting a stay from somebody,” said Smith R. Brittingham IV, who leads the ITC litigation practice at Finnegan, Henderson, Farabow, Garrett & Dunner LLP.
Apple filed an emergency request with the United States Court of Appeals after the Biden administration’s decision not to reverse the sales ban, allowing it to take effect late last week. On Wednesday, the Court of Appeals for the Federal Circuit put an interim stay in place while the court reviews Apple’s request for a full stay for the length of the appeal. This effectively pauses the ban on Apple Watch imports and sales for a brief period.
The appeals court is accepting letters supporting or opposing the import ban through January 15. The court will make a final ruling on the stay sometime after that date.
The U.S. International Trade Commission (ITC) ordered a ban on Apple Watch imports into the country. The ban follows a ruling by the ITC that Apple had violated pulse oximetry patents held by Masimo.
Masimo in 2020 claimed Apple stole Masimo employees and stole trade secrets while the Cupertino firm was developing the Apple Watch. Masimo was seeking over $1.8 billion in damages and co-ownership of five Apple pulse oximetry patents that Masimo said used its technology.
Apple’s development of a software workaround is separate from its legal efforts to reverse the ITC ban. The ITC said that a victory before the Customs tribunal would only reinforce the court’s original decision.
“That forthcoming Customs decision on the redesigns has no bearing on the status of the infringing Apple Watch products, and in fact, a favorable decision by Customs would further undermine any assertion of irreparable harm,” the ITC told the Federal Circuit in a Dec. 26 letter responding to Apple’s filings.
If Customs doesn’t rule favorably on Apple’s redesigned devices, it can appeal to the US Court of International Trade. Any decision from that court could also be appealed to the Federal Circuit.