President Biden is Apple’s last hope after losing appeal of Apple Watch ban

Editor’s note: On Wednesday, Apple lost an appeal to the International Trade Commission to delay the import and sales ban of the Apple Watch Series 9 and Ultra 2. In its filing, the ITC said, “For the reasons discussed in the Commission Opinion issued concurrently herewith, the Commission has determined to deny Apple’s motion to stay the remedial orders pending appeal and/or in light of a potential government shutdown.” The ban will proceed as ordered on December 21 unless U.S. President Joe Biden vetoes the ITC’s ruling. The article below was originally posted on Dec. 19.

In a shocking development, it emerged earlier this week that the two newest Apple Watch models, the Series 9 and Ultra 2, are set to be removed from sale beginning December 21, as a result of a patent dispute. We have since learned that Apple is working on an urgent software update it believes can resolve the situation… although the company’s legal opponent thinks otherwise.

Following news of the ban, Bloomberg reported on Apple’s “rescue mission” to allow sales of the wearables to continue. Since the International Trade Commission’s import ban centers around a patent for blood-oxygen measurement, Cupertino’s engineers are “racing to make changes” to the relevant algorithms. “They’re adjusting how the technology determines oxygen saturation and presents the data to customers,” Bloomberg writes, citing sources familiar with the work. Apple itself has made a rare public statement, with a spokeswoman telling Bloomberg that it “is working on submitting a workaround to the U.S. customs agency, which is in charge of approving changes to get a product back on the market.”

However, we don’t know what that means for the sensor, which debuted on the Apple Watch Series 6. Apple uses the sensor to “measure the percentage of oxygen your red blood cells carry from your lungs to the rest of the body.” According to studies, the sensor is as reliable as a medical-grade device. Any algorithm changes could reduce that accuracy or change the functionality of the sensor. It’s unlikely that Apple will disable the sensor altogether, but that’s also a possibility.

If the situation can be resolved via a software update, the process will be relatively straightforward; Apple’s internal software testing takes a while, and there will be regulatory hoops to jump through, but this is all far quicker than updating the hardware. Yet Masimo, the company arguing that Apple infringed its patents, believes a software update will not be sufficient.

“The hardware needs to change,” it said in a statement. After all, the patents largely refer to hardware elements, the light-emitting and -detecting instruments used to measure oxygen levels in the blood.

Of course, Apple does have one option that seems quicker and easier than changing either the software or the hardware: it could admit defeat and settle, but that’s not how Apple operates. Apple previously held meetings with Masimo about using the company’s tech, but the talks broke down, according to court documents. Apple also hired Masimo engineers away from the company.

Technically the ban does not actually prevent Apple from selling the devices, simply from importing them into the U.S. But in practice, the effect is the same, because the company relies on overseas suppliers to manufacture its products before shipping them to its stores. The ban takes effect from December 25, but Apple plans to halt sales in a staggered fashion beginning a few days earlier.