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Apple Watch ban: Apple lobbying tests Biden's resolve to hold big tech to account
After ruling that Apple had violated an ECG patent, the company is pressing Biden to veto ITC ruling that would ban Series 8 and Ultra in the US
➡️ The Shortcut Skinny: Apple presses Biden
🧑⚖️ Medical wearable maker AliveCore sued Apple over alleged patent infringement
❌ ITC ruling says ECG Apple Watches are forbidden for US import & sale
🙅 But the US Patent Office says the patents in question are invalid
📖 ITC ruling must be reviewed by President Biden before ban goes into effect
📅 Biden must decide by Monday – if not, the ban takes effect.
🤔 Apple has options if Biden lets the ruling stay, but they’re not great
The best Apple Watch could be difficult to come by in the US if an International Trade Commission (ITC) ruling is allowed to stand on Monday, and Apple is lobbying hard to get President Biden to stop it, says a story in The Hill today.
The ruling, which came in December 2022, found that Apple had violated a wearable electrocardiogram (ECG) sensor patent granted to AliveCor, a company that, prior to the sale of the Apple Watch Series 4 with ECG in 2018, shared its wearable ECG with Apple, later offering it for sale. As a result, the ITC issued what’s called a Limited Exclusion Order, barring Apple from importing products in violation of the order, which in this case is the Apple Watch Series 8 and Apple Watch Ultra.
If the ban takes effect, it could place a dark cloud over the iPhone 15 Pro Max release date later this year, as Apple Watch announcements usually take place alongside Apple’s new phones.
Apple Watch vs. AliveCore: a brief history
When Apple debuted the Series 4, AliveCore told the ITC last year, it cut off third-party heart-monitoring software, effectively killing AliveCor’s product. AliveCore filed suit with the ITC, alleging Apple had infringed on its patent with every Apple Watch with ECG monitoring since, which the ITC clearly agreed with.
Apple issued a statement to 9to5Mac in December saying it disagreed with the ITC’s decision and points out the patents AliveCore had claimed were found invalid – indeed they were, in a separate US Patent and Trademark Office’s Patent Trial and Appeal Board (PTAC) case earlier that month (also at 9to5Mac).
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Apple Watch ban: testing Biden’s resolve
President Biden has had 60 days from the December 23 ruling by the ITC to consider whether to allow it to stand or dismiss it, in light of the PTAC’s decision. The Hill reports that Apple has contracted Shara Aranoff of the Covington & Burling lobbying firm, who was the chairperson of the ITC while Barack Obama was president, to lobby on its behalf.
Biden’s decision, due Monday, February 20, is not easy. Holding big tech accountable was a feature of his recent State of the Union address, wherein he called on Congress to “pass the bipartisan legislation to prevent big online platforms from giving their own products an unfair advantage,” while in a January op-ed published in The Wall Street Journal, Biden criticized big tech for finding “ways to promote their own products while excluding or disadvantaging competitors – or charge competitors a fortune to sell on their platform.”
Those two sentiments sound pretty unfavorable for Apple’s chances in the ITC ruling, but Apple has had success in the past with an administration Biden was part of.
As pointed out in The Hill’s story today, Apple successfully lobbied President Obama in 2013 to veto ITC’s ruling that would’ve banned imports of the iPhone and iPad over Samsung patent violations. Biden was, of course, Vice President, and it’s possible he could make a similar decision.
Apple Watch ban: what happens if Biden sides with the ITC
It looks like Apple yet has options if Biden sides with the ITC or lets the review period go unaddressed. According to a July 2022 article published in Law360 (via Foley & Lardner, LLP), respondents under Limited Exclusion Orders (LEO) may submit a Rule 177 request, wherin it asks US Customs and Border Protection Exclusion Order Enforcement Branch to declare the offending products not subject to the order in question.
The burden is then on the respondent to “show by preponderance of evidence that an article does not infringe.” Given the PTAC’s ruling that AliveCore’s patents are illegitimate, this seems like a possible route for Apple, though the optics of such a move could be damaging for the company at a time when big tech is under extra scrutiny.
The article notes that a party under an LEO could optionally continue importing, paying a bond fee of $2.00 per unit imported, as determined by the ITC. The point may be moot, of course, if Biden opts to reverse the ITC’s decision. We’ll have to wait and see.