Apple Wins a Temporary Reprieve on Apple Watch Ban

In a sudden turnabout, Apple has just won a pause on the Apple Watch ban order that officially came into effect yesterday after a US Court of Appeals granted an interim stay on the enforcement of the ban.

The decision by the United States Court of Appeals for the Federal Circuit means that Apple should again be able to immediately return the Apple Watch Series 9, Apple Watch Ultra 2, and even the refurbished Apple Watch Series 8 to sale in the United States — for now at least.

While the order from the appellate court came remarkably fast, that’s partly because even this temporary pause is far from decided — if things don’t go Apple’s way, the ban could come back into effect as early as next week.

To nobody’s surprise, Apple had an appeal ready to go in response to a ruling by the International Trade Commission (ITC) that prohibited the Apple Watch from being imported into the United States or sold by Apple effective Christmas Day. In October, the ITC ruled that Apple Watch models containing blood oxygen sensor technology infringed on patents held by California-based health technology company Masimo.

Apple naturally disagreed with that finding and has been planning to file an appeal since the original decision was handed down two months ago. However, it’s not permitted to do so until the standard 60-day Presidential review period ends. During that time, the Biden administration could have overturned the ITC decision and neutralized the ban. Yesterday, the White House announced that wasn’t going to happen, leaving the ban to go into effect and resulting in Apple pushing the “send” button on an appeal that it undoubtedly already had sitting in its “drafts” folder.

As with most appeals in situations like this, Apple’s appeal included a standard request that any actions against it be stayed pending the final outcome of the case.

In other words, it asked the appellate court to delay the import and sales ban until a final decision is reached. This is a common practice in most cases where a party to a case or a lower court has already sanctioned one of the other parties — even Epic Games tried something similar in its case against Apple — but in this particular case, the response came back at lightning speed, with the US Court of Appeals handing down its initial decision less than 24 hours after Apple filed its appeal.

This is Far From Over

Unfortunately, today’s decision is about as temporary as it gets. The court has agreed to let Apple return the infringing Apple Watch models for sale and begin importing them again by directing the government not to enforce the ITC’s orders, but it’s also given the ITC a five-day extension to prepare its response before it officially decides on Apple’s motion for a full stay of the ban.

To be clear, the ITC is formally opposing Apple’s appeal and insisting that the ban remain in place. The court will likely make a final decision later next month after hearing both sides of the case; the ITC has until January 10 to file its opposition to the motion, and then Apple has until January 15 to respond to the ITC’s opposition.

This means the Apple Watch Series 9 and Ultra 2 should remain on sale until at least January 15, and possibly even a few days after that, since the appellate court has made it clear that the ban is off “until further notice while the court considers the motion for a stay pending appeal.”

While it’s unclear which side the court will come down, the issue could be moot by then. Apple is working on software changes in watchOS 10 that it hopes will convince US Customs that the banned devices no longer infringe on Masimo’s patents, thereby clearing them for import and sale. Customs is expected to issue its decision on January 12.

If Apple’s software modifications are insufficient — and many experts believe this is a long shot — it will be up to the appellate court to first decide whether the ban should indeed be stayed while it hears Apple’s full appeal. No matter which decision it makes at that point, the court will still need to decide the ultimate fate of the Apple Watch and its blood oxygen sensor technology — an appeals process that could take months before a final resolution is reached. The only question before the courts in the short term is whether Apple should be allowed to continue selling the allegedly infringing Apple Watch models in the meantime.

Apple has yet to comment on whether it will begin selling the Apple Watch Series 9 and Ultra 2. The company already pre-emptively took the wearables off its virtual and physical shelves last week in advance of the ban going into effect, so it may similarly wait for a final decision on the stay rather than risk jumping the gun.