As much as I hate awfully broad patents, if the shoe was on the other foot, Apple would unleash its army of lawyers to block the other company's sales.
this post was submitted on 26 Dec 2023
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Apple has done this many times before. Over even more frivolous patents (i.e. a glossy black rectangle)
They made their bed, now they have to lie in it
In this case, it doesn't seem like the patents are "awfully broad". Masimo is actively selling products using the patents, and it seems likely that Apple stole their technology.
From the Apple claims:
Masimo waited over a decade after it filed its original provisional applications, only to file the new applications that became the supposedly infringed patents just a week after Apple launched the first of the accused Apple Watch products.
Sounds to me like that should be illegal, no matter who does it.
Well if it was their IP, and they had it in a product, it's theirs. They registered it over 10 years ago. Did Apple just magically come up with the same idea, or did they see and copy it?
A patent troll usually sits on patents they don't use. This is a legitimate company with products. A small guy that cannot afford to file paperwork for all their stuff immediately shouldn't be penalised.
One thing that is weird is that apple always has a lot of people ready to defend the big multi-billion dollar corp.
They registered it over 10 years ago. [...] or did they see and copy it?
You can see patents once they get published, not when the provisional claim gets filed... so no, Apple could not see and copy it.
Apple just magically come up with the same idea
According to Masimo, Apple lured some engineers from Masimo to develop a solution... that happened to be similar enough that Masimo could file, and this time publish a patent after the fact that made Apple infringe it.
a lot of people ready to defend the big multi-billion dollar corp.
Even more people look at the finger and miss the Moon of a broken patent aystem.
There are generally 2 ways patents get infringed.
The first is some little guy comes to market, a competitor sees their product, and figures they can out-lawyer them in court. A great example is Fox pealess whistles. A variant of this is hiring experts who previously worked on patented or patentable material and having them copy the work without following reverse engineering practices in order to make sure you don't violate your previous employer's patents.
The second one is a patent troll gets an overly broad patent where anyone else doing work in the industry is going to infringe, mostly because the patent fails the obviousness test or there is prior art that the patent examiner isn't aware of. The SCO patents generally fall under this (as well as MS patenting Windows in the context of computers, Apple with their rounded rectangles, and others I can't bother to remember.
There are relatively rare cases where two inventors come up with the same idea to solve a problem (the flushing toilet is one) or someone reads filed patents and decides to copy the method directly, rather than obtaining the results using a different process.
That's even worse. When they're hiring multiple devs from there, they cannot claim they didn't know it existed. Also, if the product actually exists, they don't need to see a patent filing to copy it...
I used to be a patent examiner and provisional applications were filed to secure a "prior art date" before everything is finalized, and when I was there had to be followed up within a year with a regular application and only the processes described in the provisional get the provisional date.
You could file a new application in addition to older ones to add processes but the new added stuff gets the new filing date while the already described stuff gets the older date.
And it regularly took 2-3 years for an application to become a patent, and that was a relatively quick one without much back and forth, our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up by an examiner. It's not important when the application became a patent, it's important when it was filed and what it contained.
I haven't looked at the specifics in this case (I really don't miss being an examiner), but patent filing date and prior art dates are complicated and of course apple is going to try and make it sound like they didn't infringe and masimo is going to try to make it sound like they did. Apple playing games with wording and product release dates is not really relevant. If apple developed the technology they can show their notes and get a prior art date before the masimo provisional application, because it didn't just show up in their watch the day it was released.
our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up
That's insane 😲
I mean, it's already iffy to assume than "only one person can come up with a given idea at a time", it gets worse when "whichever gets to patent first is the only possible inventor", but waiting 5 or 15 years after the fact just to be granted a monopoly on the invention... is insane.
It's not important when the application became a patent, it's important when it was filed and what it contained
Maybe I'm missing something, but how can anyone be accused of copying a patented work, if they announce or release their product before a patent gets published?
Sure, they probably should have filed an application themselves, but if the backlog to even look at an application is 18 months, then what happens of person A files an application, then 12 months later person B files a similar application, and they just sit there? Should person B wait until their application gets processed (positively or negatively), before announcing or releasing anything? What about products released with a "Patent pending" notice, are they just a gamble?
What I seem to understand for this case, is that Masimo has been filing multiple provisionals for different patents over 15 years, they may have approached Apple to license some of them, then when Apple announced their own product, Masimo hurried up to fix the wording on a bunch of the provisionals to match Apple's product, and filed them as finals.
From an external point of view, what I see is the publication of a product using non-patented technology that should be considered prior art and render all those patents invalid.
A couple things that I didn't make too clear that may help sort some of these things out:
- patent applications, provisional or not, are published (unless specifically filed to not be, but 95% of applications I looked at were published). But I didn't think inventors would search patent databases before inventing...
- Filing date is the easiest way to establish prior art date, not the only one. If two inventions are similar and filed close in time to each other they could show additional things to establish an earlier date. I forget the specifics but it regularly happened when I would use prior art within a year of the filing date to reject the application that the applicant would come back with notes from meetings or emails or other supporting documents to establish a new prior art date and invalidate my rejection, a product release would qualify, but it has to be before the filing date of the provisional or application where the infringed process is disclosed.
From the limited details I know about the case it looks like apple wanted to use the masimo process, even approached them but then backed out and apple didn't use a different enough process in their watches to avoid infringement.
That seems to me like apple doesn't have a prior art date before masimo for the process used since they approached masimo and the small sections of arguments I've seen from apple are focused on the length of time between application and patent and that at the time masimo was not making consumer devices. Both of which have little to nothing to do with infringement. If their arguments were about the difference in their process vs massimo, or notes or something detailing development before approaching masimo I would have a more favorable eye towards apple.
Again I might be missing something because I have not really read up on this except highlights from articles and a passing interest because of my old job. But was trying to provide some insight to the patent side of it.
Additionally, the claimed infringement relates to the fact that it's reflective pulse oximetry using three or more sensors. Your Garmin and old Apple watch aren't infringing because they use two sensors. I think the patent in its current state should not have been granted. It would be like patenting the placement of three or more CPU sockets on motherboards that fit in a certain rack size.
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It pleases me when the law actually protects a smaller company that had its tech stolen by a corporate giant.
Looks like a patent troll, though.
Apple is a patent troll so it serves them right. They think they can patent rounded rectangle, lol
https://www.masimopersonalhealth.com/products/masimo-w1
Looks like they've been selling this since November 9th 2022 at the latest.
The trolling comes from stuff like this:
"Non-invasive physiological sensor cover"
US US11779247B2 Abraham Mazda Kiani Masimo Corporation
- Priority 2009-07-29
- Filed 2022-12-20
- Granted 2023-10-10
- Published 2023-10-10
They were fine with selling their own watch in a "patent pending" state over 10 years after having filed a provisional application, but the moment Apple announced their own watch, they hurried to write a final application after the fact worded in a way that would make Apple infringe on it thanks to having a 10+ year old priority on it.
They've been pulling the same stunt a bunch of times:
https://patents.google.com/?assignee=Masimo&oq=Masimo&sort=new
Several 2023 patents, have a priority as far back as 2006!
Why does this constitute trolling, though? That means they actually did invent and produce the tech for that whole period, doesn't it? I could understand filling a provisional patent and then only pulling the trigger on the whole shebang when you actually have to protect it.
It doesn't, you're 100% correct. Apple fanboys gonna fanboy.
Also this whole thing is stupid. Apple literally refused to come to an agreement for the patent and was literally hinging its hopes on the Biden administration blocking the injunction, which made sense when it was a US company vs a non-US company, but of course doesn't make sense when it's two US companies. Apple probably could have bought out the entire company for less money than these 10 years of court cases cost but they thought they could bully the little guy with their market position.
Apple fanboys gonna fanboy.
I will kindly ask you to retract that insult. I have never owned, paid for, rented, or otherwise let any Apple products into my life, don't own any AAPL, and definitely are not a fan of Apple's shenanigans.
these 10 years of court cases
What are you talking about?
Okay so it wasn't 10 years of court cases (this is what they said on the Vergecast but that apparently was incorrect) however the saga HAS been going on for 10 years:
This particular story started about 10 years ago when Apple reached out to Masimo about a potential partnership around blood oxygen features on its wearables. Soon after, Apple reportedly poached several Masimo engineers and its chief medical officer.
So 10 years ago, Apple reached out to Masimo about the technology, didn't license it, proceeded to hire several of their engineers and its Chief Medical Officer, and then used the technology anyway after not licensing it and clearly poaching their engineers and CMO for the purposes of copying Masimo's IP. And that's what was proven in this court case, that Apple has been infringing on Massimo's patents because of these facts.
I will kindly ask you to retract that insult.
I'll retract that "insult" when you explain why you're still defending apple after several people have responded to you with objective information that this is not a patent trolling case and that Massimo was using the technology but you're still defending Apple while having no counter-argument to the fact that it's clearly not a patent trolling situation.
This is not a vote, these are facts you can check yourself:
- Between 2006 and 2022: Massimo kept building a portfolio of "provisional filings", without filing a final version that would get published
- 2022: Massimo launches its own watch, still without having filed for final patents
- later in 2022: Apple announces a watch with similar functionality
- shortly after Apple's announcement: suddenly Massimo decides to file final versions of a slew of patents it had kept in the "provisional" stage for 15+ years
There is no counter-argument.
You're missing the part where Apple initially wanted to partner with Masimo and when they refused, decided to poach several employees from Masimo to develop the competing product.
Masimo seems to have a legitimate case here, and Apple is definitely in the wrong, as they knowingly attempted to copy Masimo's product. The late publication of the patents could be due to literally anything, but it doesn't seem to be done willfully to 'trap' Apple into this lawsuit. Because of that, I'd argue that this is a bit of a fault in the broken patent system, but that Masimo is not deliberately patent trolling here.
If Masimo hadn't finalized the patent, Apple would have filed it's own similar one and the reverse would have happened. It was literally their only option when confronted with a tech giant who is notoriously litigious. If that happened, Apple would have shut down an actual medical device company through constant legal battles Masimo couldn't afford to win.
This isn't trolling because Masimo is actually using the patent and the patent is specific. Patent trolling is filing a bunch of broad patents and hoarding them, often with no intent to develop a product, for the express purpose of either filing law suits or to stifle competition. Apple is often considered a troll for that latter reason.
Masimo would likely allow Apple to license the patent. But Apple tried to bypass paying licensing fees entirely and it's still doing so. Masimo was well within it's rights to protect itself from Apple, though. Unfortunately, this is what a smaller company protecting itself from a larger one looks like in the US.
I could understand filling a provisional patent and then only pulling the trigger on the whole shebang when you actually have to protect it.
That is trolling.
Patents are intended as a social contract:
- An inventor: gets a limited time monopoly to sell their invention
- Everyone else: gets to see how they did it, then get to do it for free once the monopoly time expires
Filing claims and keeping them hidden, then rewording them for publication when "you actually have to protect it", is trolling.
Patent trolling is buying up patents from their actual inventors for the purpose of suing and extorting money from companies that actually make use of the tech, while not actually doing anything productive with them.
Two facts here: 1) they invented the tech, and 2) they used the invention to legitimately produce items for sale.
Trolling is not a fit for this.
They kept provisional filings on hold for over 15 years, released their own product without filing for the actual patent, and only did so after a competitor announced their own product.
If you don't want to call it "trolling", what do you call "abusing the patent process to keep competitors unaware of pending patents that can be used against them retroactively"? What would be a shorter word for that?
Be that as it may, it's small potatoes compared to Apple's business practices.
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Someone at Apple's legal dept is gonna have a bad day
Poor Apple... if only the most valuable company on the planet could afford to pay the patent-holders their fair share... but money is tight. They only made $99.8 billion dollars in profit last year.
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A statement (via CNBC) from the Office of US Trade Representative Katherine Tai said the agency “decided not to reverse the ITC’s [International Trade Commission] determination” after “careful consideration.”
The ITC issued the ban after finding that Apple infringed on blood oxygen saturation technology patented by a company called Masimo.
It also ordered Apple to stop selling any previously-imported devices with the infringed-upon tech.
While Apple attempted to block the decision while awaiting an appeal, the ITC denied Apple’s request, and the other chance of intervention was a veto from President Joe Biden, which didn't happen.
Apple will also continue selling the Watch SE, as it doesn’t come with a blood oxygen sensor.
But both of those methods might not be enough to satisfy the ITC, which is why Apple could always choose to settle with Masimo instead.
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All patent enforcement these days feels like trolling. Does anyone know if this company actually developed the tech or if they just acquired the patent for this purpose?