Apple Watch Ban Now In Full Effect as Biden Administration Upholds ITC Ruling

Any hopes Apple and its fans may have had for an eleventh-hour reprieve on the Apple Watch ban were dashed this morning, as the Biden administration has officially confirmed it will not intervene in the dispute.

In a statement this morning, the International Trade Commission (ITC) reported that “after careful consultations,” the US Trade Representative, Ambassador Katherine Tai, has “decided not to reverse the ITC’s determination,” and “the ITC’s decision became final on December 26, 2023.”

This means Apple now has a long road ahead of it before the Apple Watch Series 9 and Apple Watch Ultra 2 will once again be on sale in the United States, with no indication of when we may see those models reappear on store shelves.

To recap, the ban on Apple Watch sales was ordered by the ITC earlier this year after the agency found that most of Apple’s wearables had infringed on two patents owned by California-based health technology company Masimo. The patents in question relate to the pulse oximetry technology used in the blood oxygen sensor from the Apple Watch Series 6 to the Series 9 and both Apple Watch Ultra models. The Apple Watch SE is unaffected by the ban and remains on sale in the US as it does not include the infringing technology.

Apple and Massimo have been battling it out for a few years now, beginning with a 2020 lawsuit that accused Apple of stealing Masimo’s trade secrets and poaching nearly 20 of its most senior engineers in the early days of the Apple Watch design. That case ended in a mistrial earlier this year, but things came to a head after Masimo’s separate complaint to the ITC resulted in a finding of patent infringement; even after Apple managed to get some of Masimo’s patents invalidated, there were at least two patents left standing that Apple was still found guilty of infringing upon.

For its part, Apple has claimed that Masimo has infringed on Apple patents in building its own W1 smartwatch and accused Masimo of using the ITC case to clear the field so that the W1 will have no competition from the Apple Watch. Masimo stands by its claim that Apple deliberately stole its intellectual property and infringed upon ten of its patents and has finally “been caught with their hands in the cookie jar.”

Whether Masimo truly hopes that wearable customers in the US will turn to the W1 in the absence of the Apple Watch Series 9, the fact remains that getting an Apple Watch in the United States is about to get a lot harder. For now, the ITC orders only prevent Apple from selling and importing the Apple Watch; third-party retailers like Best Buy, Walmart, and Amazon are free to continue selling whatever inventory they have — and you can still easily find the latest Apple Watch models on Amazon — but they won’t be getting any more stock once that inventory runs out. The ITC’s limited exclusion order forbids the import of any infringing models made by Apple into the United States, regardless of who is doing the importing.

Naturally, as a US agency, the ITC’s orders only apply in the US. For the rest of the world, it’s business as usual, and the entire Apple Watch lineup remains in sale elsewhere, including in neighboring countries Canada and Mexico.

Now What?

Last week, a motion by Apple to delay the ban was denied, and with today’s refusal by the White House, it appears that all immediate legal avenues have been exhausted.

Apple still plans to appeal the ban to a higher court and may even be able to get an injunction staying the ban until the appeal has been held, but even a preliminary injunction will take weeks or even months to make its way through the courts; a full appeal could take years.

In a statement to ?9to5Mac?this morning, Apple reiterated its commitment to get the Apple Watch Series 9 and Ultra 2 back on the market as soon as possible. Still, it stopped short of providing details on how it plans to accomplish that.

At Apple, we work tirelessly to create products and services that meaningfully impact users’ lives. It’s what drives our teams — Clinical, Design and Engineering — to dedicate years to developing scientifically validated health, fitness and wellness features for Apple Watch, and we are inspired that millions of people around the world have benefited greatly from this product. We strongly disagree with the USITC decision and resulting exclusion order, and are taking all measures to return Apple Watch Series 9 and Apple Watch Ultra 2 to customers in the U.S. as soon as possible.

Apple

One obvious option would be coming to a settlement with Masimo. The company’s CEO, Joe Kiani, has said he’s open to a settlement but that “They haven’t called” and “it takes two to tango.” It’s unclear how much money Masimo would demand in such a scenario, but Kiani has made it clear that part of that would be an apology and an “honest dialog” that could be construed as acceptance of Masimo’s claims of trade secret theft — a position that Apple vehemently denies.

Last week, sources told Bloomberg’s Mark Gurman that Apple is working on software updates that could remove the infringing features and allow the Apple Watch Series 9 and Ultra 2 to return to sale in the US. However, several patent experts consider that a long shot, as the patents are more about hardware than software. Nevertheless, it’s an easier road than retooling the Apple Watch to remove the sensor entirely, which could take months.

What This Means for You

The obvious impact of the ITC ruling is that the Apple Watch Series 9 and Apple Watch Ultra 2 are no longer available from Apple in the US. While other retailers are still selling them, these will likely disappear over the next few weeks as they run out of stock.

The good news is that Apple will still be permitted to import new Apple Watch models for warranty purposes, so you can still get your broken Apple Watch replaced by Apple under warranty. This includes not only the latest Apple Watch Series 9 and Apple Watch Ultra 2 but also any older infringing models that still have warranty coverage, such as the Apple Watch Series 8.

This also means you don’t need to be afraid of buying a new Apple Watch from Best Buy or Amazon, as there are no limitations on Apple’s ability to fix or replace it if it turns out to be defective. The ITC has specifically carved out an exclusion for warranty issues, and there’s no reason to believe this will change.

It’s less clear how this applies to AppleCare+ coverage for accidental damage since that’s technically not a “warranty” issue. Apple hasn’t clarified this, and legal experts have yet to weigh in.

Further, Apple is no longer permitted to exchange any Apple Watch Series 9 or Ultra 2 models for other reasons, so if you received the wrong color under the tree this year, you may be stuck with it. Apple will exchange accessories like watch bands as they don’t contain any infringing technology. Still, the units themselves can only be returned for a full refund, so if you really want a different color or size, your only option is to return it and then attempt to buy your preferred choice from another retailer like Amazon.