Apple submitted a software workaround that could let the company sell non-infringing Apple Watch versions as soon as January 12, while appealing the US ITC ban

Bloomberg 2023-12-29 Christopher Yasiejko

Context & Ripple Effects

Apple had already planned to halt US sales of the affected Watch models to comply with the ITC ruling, after the agency declined to pause the import and sales ban during the appeal. That made a workaround more than a litigation tactic: it was a route to preserving product availability while the case continued.

The submission follows reports that Apple was pursuing a software-based path around the disputed patents. The later appeal process, including the ITC's opposition to a longer pause, underscores that the workaround and the underlying ban are separate but connected tracks.

First-order effects

Apple can seek to resume US sales of versions it considers non-infringing as early as January 12, subject to the relevant review of its proposed changes.
The ITC dispute shifts from an all-or-nothing sales interruption toward scrutiny of whether a modified software implementation falls outside the remedy.

Second-order effects

The patent claimant must contest the adequacy of a software-only change if it believes the asserted technology requires a hardware change, increasing the importance of technical interpretation in the dispute.
Apple's retail and channel plans can become contingent on the status of modified versions rather than solely on the timetable of the broader appeal.

Third-order effects

If software modifications repeatedly become a viable response to import remedies, patent enforcement may increasingly determine which features remain enabled in particular markets while appeals proceed.
The case illustrates contestable gatekeeping: trade remedies can reshape product configuration, but the durability of that leverage depends on whether redesigns withstand review.

The trend: Patent disputes over connected devices are increasingly being fought through product reconfiguration and feature-level workarounds alongside formal appeals.

Discussion

@gus.estrella.eagen Gus Estrella on threads
They are more concerned on setting precedent. I am sure they have models on risk and cost benefit and decided in the long run will cost more of other companies start to sue them. Cost can be beyond $ too - distraction, perception of their client affecting future sales , etc
@vthallam Venkatesh Thallam on threads
Apple instead of settling with Massimo is trying to do a software fix to get around the patent restrictions. Smh how hard is to actually pay them, can't imagine losing holiday sales because you are too stubborn to settle.
@yasiejko Christopher Yasiejko on x
@Apple @FinneganIPLaw Patent-related appeals at the Federal Circuit typically range from ~1-1 1/2 years. A stay of ITC's orders for the appeal's duration would likely take longer than $AAPL often does to develop & release next gens of devices—even as it fights for the viability o…
@matthewstoller Matt Stoller on x
We don't pay attention to the Federal Circuit court but those judges just helped Apple steal technology from Masimo for no reason. The FedCircuit has jurisdiction over patents/trademarks, as well as international trade and procurement. And it is *terrible.*...
@neilcybart Neil Cybart on x
Apple Watch Series 9 and Ultra 2 are once again available for sale from Apple in the U.S. Apple turned to the courts to intervene. Next test is if changes that Apple will push out for the two devices void the sales/import ban altogether. [image]

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