Following the dramatic news in December that its flagship Apple Watch Series 9 and Ultra 2 smartwatches were being banned from sale, Apple has been hustling ever since to get them back on the market and keep them there. The problem is that the ITC has ruled that blood-oxygen sensors in the devices infringe patents owned by another company named Masimo.
The initial ban lasted only a few days, with an appeals court granting Apple’s request for a temporary stay, but the future remains uncertain. The company wants the ban to be paused for the entire appeals process, which could last a year or more and comfortably take us through to the launch of the next generation of Apple Watches, but the ITC for one finds Apple’s arguments for this course of action “weak and unconvincing” and success is by no means assured.
Update 01/17/24: The appeals court has denied Apple’s motion (PDF) for a continuing stay on the sales ban, which means that the ban is back in effect beginning January 18 at 5pm Eastern Time. Apple will have to either sell the Series 9 and Ultra 2 without the blood oxygen feature or stop selling them entirely.
Accordingly, Apple is hoping for the best while preparing for the worst. Last month it began work on a software workaround for the offending smartwatches, saying this would resolve the patent dispute to all parties’ satisfaction, and this week it emerged that US Customs has given its approval. We’ve also learned more about the workaround itself, and it turns out the changes are far more drastic than previously suspected.
Rather than tweaking or even redesigning the process by which the watches measure blood oxygen, the software update removes the feature entirely. Apple obviously can’t remove the sensor from the device, but it’s disabled for this purpose at least by a software inhibition. This was revealed by Masimo (as reported by Bloomberg), with whom the customs agency shared its findings.
“Apple’s claim that its redesigned watch does not contain pulse oximetry is a positive step toward accountability,” the company commented. “It is especially important that one of the world’s largest and most powerful companies respects the intellectual property rights of smaller companies and complies with ITC orders when it is caught infringing.”
The Oxygen saturation (SpO2) sensor arrived with the Apple Watch Series 6 and takes on‑demand readings of your blood-oxygen levels as well as background readings throughout the day and night. Apple stresses that it’s for “wellness purposes only,” but the feature has been credited with saving lives.
Apple will hope this workaround does not prove necessary–as Bloomberg’s analyst points out, this was a highly touted feature, and its removal can only soften customer demand–but it’s now ready as a Plan B in case the extended stay is not granted. Bloomberg reports that cases of “modified” Apple Watches, presumably with the new software installed, have already been sent out to retail stores, although employees have been firmly instructed not to sell or even open the packages.
What isn’t clear at this point is whether the software workaround can or will be applied retrospectively to already purchased watches through a watchOS update; if so, this would seem deeply unfair to owners who paid for a feature they wanted. We’ll report back as soon as we know more, but in the meantime, we’d advise anyone desperate for an Apple Watch with blood-oxygen measurement to buy sooner rather than later, and disable automatic software updates by opening the Settings app and going to General > Software Update > Automatic Updates.
