But it’s not just a single apparatus that may or may not be using similar tech. It’s but one part of the whole. And I’m sorry, but that’s the problem I have with lawyers in general (no you personally, just in general). If something is disabled (in this case, the interim let’s say), it more than less implies uselessness as far as the end user is concerned.
No it doesn’t. It just means that the infringer is more willing to suffer the consequences of disabling it (lost sales, reduced sale price, whatever) than suffer the consequences of paying a license fee. That may say something about the reasonable license fee, which is why this is something (i.e. the cost of a work-around) that can be taken into account in district courts (where royalties can be awarded as a punishment, unlike in the ITC). And it’s something that would certainly be raised by apple in settlement negotiations. But it isn’;t a rational basis to avoid an exclusion order. Because without an exclusion order there would be no reason for Apple to negotiate - the ITC can’t order Apple to pay royalties. And apple hasn’t negotiated even to this day, apparently. So let me turn that around on you - if the exclusion order is such a harsh penalty, wouldn’t apple be willing to pay Massimo something to make it go away?
That’s why functionality ought to be part of the decision.
No it shouldn’t, for the reasons stated above.
And if it’s non-functional it’s technically not infringing anything.
That’s not necessarily the case. I mentioned, earlier, the difference between method claims and apparatus claims. If my patent claim is “a watch comprising a widget with features x, y and z,” then it infringes whether or not the widget is “functional.” If my patent is a “method claim,” like “a widget in a watch that performs steps x, y and z,” then It only infringes if the steps x, y and z are performed, so you can get around infringement by skipping any of those steps.
In patent law words actually matter, and there is a ton of case law on “non-functionality” and the implications. You can’t just come along and declare it should be the way you’d like.
It may *appear* that it could or it might, but if it’s not functional (i.e., disabled) then it moots the point. Period.
The simple example i gave above shows that your “period” is a bit misplaced.
And that’s the funny thing about patents, you may attain similar or the same functionality using varying methods, but it’s only until we have a *functioning* apparatus employing a particular (and working) method that we determine anything. In this case we have a multifunctional apparatus providing functionality well beyond pulse oximetry, that *was* being banned over 2 patents is it?
Again, patent claims can be directed to structure, materials, OR functionality. You are focussed on only one of the three.
But even so, let’s assume all the claims are method claims. If you infringe the method, and there are a million more methods that the device also performs, that’s still not a good reason to not have an exclusion order. If the method isn’t important, then you should be willing to stop doing it, in which case there won’t be an exclusion order. If you aren’t willing to stop doing the infringing method, then apparently it must be pretty important. In which case the exclusion order will motivate you to pay a license to keep doing it.
In this case we don’t know what apple really thinks about it, but so far they have been unwilling to negotiate and they claim they have a way to stop infringing. If they are right, then they can continue selling the device. If they are wrong, which the judge will determine, then they will still have to make a choice, themselves, as to how important continued infringement is to their product.
O
Here’s a thought process for you: Would Apple have been found to infringe if they shipped the watch with the (let’s call it the feature) unadvertised and disabled? In other words, no one knew it was even in there. And even if discovered, the fact that it was disabled will say absolutely nothing regarding the *method* used to produce the results. The answer is either “yes” or “no”, but I believe it’s quite clear.
This thought experiment is irrelevant. They may or may not have been found to infringe in that case - it depends on the exact wording of the patent claims. I don’t know whether they are all “method” claims or not. But, in any event, a finding of infringement, if it would have occurred in that case, if it results in an exclusion order, would have the desired effect of prompting the infringer to either stop infringing or to pay the patentee.
Bottom line in this instance? The ITC ought to have crimped the particular questionable tech until it’s reviewed more thoroughly
Reviewed more thoroughly? More thoroughly than what? This has gone on for years. The point of an ITC trial is to let each side thoroughly make its case. There have been appeals along the way. At some point there has to be a result.
and until all the facts of the case are known, and not implement a blanket ban on a product that offers far more features and functionality beyond the alleged infringing tech.
While you’re at it, would you be kind enough to point me to the two patents Masimo is claiming are being infringed?
Looks like it is U.S. Pat. No‘s 10,912,502 and 10,945,648. The infringed claims are:
‘502 claim 22: (listing 19-21, as they are incorporated into claim 22)
19. A user-worn device configured to non-invasively measure an oxygen saturation of a user, the user-worn device comprising:
a plurality of emitters configured to emit light, each of the emitters comprising at least two light emitting diodes (LEDs);
four photodiodes arranged within the user-worn device and configured to receive light after at least a portion of the light has been attenuated by tissue of the user;
a protrusion comprising a convex surface including separate openings extending through the protrusion and lined with opaque material, each opening positioned over a different one associated with each of the four photodiodes, the opaque material configured to reduce an amount of light reaching the photodiodes without being attenuated by the tissue;
optically transparent material within each of the openings; and
one or more processors configured to receive one or more signals from at least one of the four photodiodes and output measurements responsive to the one or more signals, the measurements indicative of the oxygen saturation of the user.
20. The user-worn device of claim 19 further comprising a thermistor.
21. The user-worn device of claim 20, wherein the one or more processors are further configured to receive a temperature signal from the thermistor and adjust operation of the user-worn device responsive to the temperature signal.
22. The user-worn device of claim 21, wherein the plurality of emitters comprise at least four emitters, and wherein each of the plurality of emitters comprises a respective set of at least three LEDs.
‘502 claim 28:
28. A user-worn device configured to non-invasively measure an oxygen saturation of a user, the user-worn device comprising:
a first set of light emitting diodes (LEDs), the first set of LEDs comprising at least an LED configured to emit light at a first wavelength and an LED configured to emit light at a second wavelength;
a second set of LEDs spaced apart from the first set of LEDs, the second set of LEDs comprising at least an LED configured to emit light at the first wavelength and an LED configured to emit light at the second wavelength;
four photodiodes arranged in a quadrant configuration on an interior surface of the user-worn device and configured to receive light after at least a portion of the light has been attenuated by tissue of the user;
a thermistor configured to provide a temperature signal;
a protrusion arranged above the interior surface, the protrusion comprising:
a convex surface;
a plurality of openings in the convex surface, extending through the protrusion, and aligned with the four photodiodes, each opening defined by an opaque surface configured to reduce light piping; and
a plurality of transmissive windows, each of the transmissive windows extending across a different one of the openings;
at least one opaque wall extending between the interior surface and the protrusion, wherein at least the interior surface, the opaque wall and the protrusion form cavities, wherein the photodiodes are arranged on the interior surface within the cavities;
one or more processors configured to receive one or more signals from at least one of the photodiodes and calculate an oxygen saturation measurement of the user, the one or more processors further configured to receive the temperature signal;
a network interface configured to wirelessly communicate the oxygen saturation measurement to at least one of a mobile phone or an electronic network;
a user interface comprising a touch-screen display, wherein the user interface is configured to display indicia responsive to the oxygen saturation measurement of the user;
a storage device configured to at least temporarily store at least the measurement; and
a strap configured to position the user-worn device on the user.
‘648 Claim 12 (listing also claim 8, which is incorporated into claim 12):
8. A user-worn device configured to non-invasively determine measurements of a physiological parameter of a user, the user-worn device comprising:
a first set of light emitting diodes (LEDs), the first set comprising at least an LED configured to emit light at a first wavelength and at least an LED configured to emit light at a second wavelength;
a second set of LEDs spaced apart from the first set of LEDs, the second set of LEDs comprising an LED configured to emit light at the first wavelength and an LED configured to emit light at the second wavelength;
four photodiodes;
a protrusion comprising a convex surface, at least a portion of the protrusion comprising an opaque material;
a plurality of openings provided through the protrusion and the convex surface, the openings aligned with the photodiodes;
a separate optically transparent window extending across each of the openings;
one or more processors configured to receive one or more signals from at least one of the photodiodes and output measurements of a physiological parameter of a user;
a housing; and
a strap configured to position the housing proximate tissue of the user when the device is worn.
12. The user-worn device of claim 8, wherein the physiological parameter comprises oxygen or oxygen saturation.
’648 Claim 24 (listing also claim 20, which is incorporated into claim 24):
20. A user-worn device configured to non-invasively determine measurements of a user's tissue, the user-worn device comprising:
a plurality of light emitting diodes (LEDs);
at least four photodiodes configured to receive light emitted by the LEDs, the four photodiodes being arranged to capture light at different quadrants of tissue of a user;
a protrusion comprising a convex surface and a plurality of through holes, each through hole including a window and arranged over a different one of the at least four photodiodes; and
one or more processors configured to receive one or more signals from at least one of the photodiodes and determine measurements of oxygen saturation of the user.
24. The user-worn device of claim 20, wherein the protrusion comprises opaque material configured to substantially prevent light piping.
’648 claim 30 (note: this also incorporates claim 20):
30. The user-worn device of claim 20, wherein the protrusion further comprises one or more chamfered edges.
Note that now that I have read the claims, these are apparatus (structure) claims, not method claims, BUT they do require that one or more of the components be ”configured” a certain way and output specific things.
I can’t render legal opinions, for obvious reasons, but as a thought experiment consider: “one or more processors configured to receive one or more signals from at least one of the photodiodes and determine measurements of oxygen saturation of the user.” I assume apple is trying to work around this. But it seems to me, as an engineer, to be a little tricky. If they want the device to provide the oxygen saturation functionality, then the device must have a processor configured to determine measurements of oxygen saturation of the user. Don’t see a way around that. So can they change the device, using software, such that the processor doesn’t receive once or more figures from at least one the photodiodes? I doubt that, too, since my understanding is that’s fundamental to the way the watch works.
Can they work around “the four photodiodes being arranged to capture light at different quadrants of tissue of a user,” for example by disabling one of the four photodiodes? Then we get into a legal issue. Arguably, whether or not you use all four photodiodes, they are still arranged to capture light at different quadrants…. Does the claim limitation require only the arrangement? Or does it require the actual capturing? I have an opinion, but the courts may have a different opinion. And the way they reach the answer is by following the canons of claim construction to figure out what the claims mean - a process I have not undertaken (but which involves reading the entirety of the patent, figuring out if it explains what the claims mean, reading the prosecution history of the patents, etc.)
