Apple is facing a ban on one of its core products in the US – and the outcome could have implications for Australian customers.
The Apple Watch has come under fire for its functions that monitor user’s heart rates, detect irregularities and perform electrocardiograms – which US medical device maker, AliveCor, says violates patents for technology found in its KardiaBand.
The KardiaBand was released as an Apple Watch accessory in 2017, which became virtually obsolete when Apple announced its Apple Watch Series 4 would come with its own ECG function.
The ensuing battle between Apple and AliveCor could potentially see the Apple Watch banned from the US – which could set a worldwide precedent.
Litigation ticks on
AliveCor has been engaged in a bitter contest with Apple since December 2020, when it sued the tech giant for infringing on three of its patents through the health monitoring functions on the Apple Watch Series 4 and later products.
Apple counter-sued in 2022, but by then its watches were already under investigation by the US International Trade Commission (ITC), which in December ruled that Apple had infringed AliveCor’s patents.
The ruling meant Apple watches featuring an ECG function should be banned from being imported and sold in the US.
But the ITC will not enforce the ban until appeals are finished in a separate dispute between Apple and AliveCor before the US Patent and Trademark Office – which had already found AliveCor’s patents invalid.
Last week, the White House announced it would not over-rule the ITC decision that could block imports of Apple watches despite a group of Democrats writing to the ITC in November asking the body not to ban the devices as the move would present “significant detriment to American consumers”.
AliveCor is also awaiting the outcome of a 2021 anti-trust lawsuit filed against Apple for preventing third-party heart rate analysis on its Apple Watch.
The future of the Apple Watch hangs in the balance in the US while both companies appeal against decisions not in their favour.
If things work out in AliveCor’s favour, Apple devices featuring ECG technology – which include the Apple Watch Series 4, 5, 6, 7 and 8 – would no longer be allowed to be imported or sold in the US.
‘David and Goliath’ battle
Charlie Ranscombe, lecturer in design at Swinburne University of Technology, said technology developers will be paying close attention to the Apple and AliveCor dispute, which he likened to a David and Goliath-style battle.
“Sometimes a small organisation like AliveCor may just feel that they don’t have the financial means to actually pursue an organisation like Apple in the defence of their patent, because Apple’s got deep pockets for this kind of thing,” he said.
Dr Ranscombe said major corporations like Apple and Google have a history of buying up technology they might find useful and holding on to the patents even if they don’t end up doing anything with it, or of developing something extremely similar to a piece of technology without outright copying it to avoid patent infringement.
Possible flow-on effect
Although it’s “unlikely” AliveCor will succeed in having the Apple Watch banned in the US, if this does happen, whether AliveCor could do the same in Australia depends on whether its technology is patented locally, Dr Ranscombe said.
A search of the World Intellectual Property Organisation website shows AliveCor has made several international applications for patents including for a smart device LED ECG this month.
If AliveCor’s patents are valid in Australia, and they are successful in their attempts to ban the Apple Watch in the US, the company could turn its sights on banning the Apple Watch and devices with similar functions in Australia.
The tech giant may try and come up with alternative technology to run ECGs, but Dr Ranscombe said it’s also a possibility Apple could lean in to its predicament and pitch its watches in a whole new way.
With recent major data leaks leaving consumers feeling edgy about the personal information they’re handing out, and Apple already taking aim at data-tracking activities by major companies like Facebook and Google, the company could potentially promote the privacy benefits of its ECG-less devices.
“[Apple] may even [spin the situation to] say, ‘We’re holding back on capturing all your data about your health, because everyone’s worried about privacy now, that we want to be the most private,'” Dr Ranscombe said.
