Briefing On Stay of ITC’s Apple v. Masimo Ruling

Reporting in PatentlyO, Dennis Crouch analyzes the latest developments in the litigation between medical device company Masimo and Apple over Apple’s alleged infringement of Masimo’s pulse oximetry patents in the Apple Watch.

Last year the International Trade Commission ruled for Masimo. It ordered Apple to halt sales of its Series 9 and Ultra 2 Apple Watches.

An emergency order from the Federal Circuit temporarily stayed the order in late December and asked for further briefing on the case. A decision on the exclusion order will probably come before Feb. 1. The issue is whether Masimo’s patents will be comprehensive enough to stop Apple.

The ITC has filed its brief opposing an ongoing stay. It argues that Apple has not demonstrated the likelihood of success or irreparable harm, the two key factors in considering a permanent stay.

It also claims that Apple waived its prosecution laches argument by failing to raise the issue in its petition for ITC review. “Apple’s arguments amount to little more than an indisputably adjudicated infringer requesting permission to continue infringing the asserted patents,” it says.

It includes a declaration from Masimo CEO Joe Kiani, who says his company is the one facing significant irreparable harm including damage to its reputation and goodwill, loss of employee morale and incentives to innovate, and being forced to compete against its own patented invention.

According to the response, Apple’s reliance on “vague” assertions of “reputational” and “goodwill” harm is “speculative, and points out that no affidavit to support Apple’s assertions was filed.

It says Apple’s arguments stand “in stark contrast to instances where this Court has granted a stay” based on evidence threatening a company’s “entire existence.”

Crouch speculates that the next move in this litigation is likely to be an attempt by Apple to get irreparable harm information in front of the Judges.