Masimo waited over a decade after it filed its original provisional applications, only to file the new applications that became the supposedly infringed patents just a week after Apple launched the first of the accused Apple Watch products.
Sounds to me like that should be illegal, no matter who does it.
I agree, which is why I’m kinda happy this happened. Big companies (such as Apple) are notorious for this practice, so now that one of them is a victim, well, I was gonna say “maybe something will finally be done about it” but we all know that won’t happen so at least we can revel in the irony a bit.
I used to be a patent examiner and provisional applications were filed to secure a “prior art date” before everything is finalized, and when I was there had to be followed up within a year with a regular application and only the processes described in the provisional get the provisional date.
You could file a new application in addition to older ones to add processes but the new added stuff gets the new filing date while the already described stuff gets the older date.
And it regularly took 2-3 years for an application to become a patent, and that was a relatively quick one without much back and forth, our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up by an examiner. It’s not important when the application became a patent, it’s important when it was filed and what it contained.
I haven’t looked at the specifics in this case (I really don’t miss being an examiner), but patent filing date and prior art dates are complicated and of course apple is going to try and make it sound like they didn’t infringe and masimo is going to try to make it sound like they did. Apple playing games with wording and product release dates is not really relevant. If apple developed the technology they can show their notes and get a prior art date before the masimo provisional application, because it didn’t just show up in their watch the day it was released.
our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up
That’s insane 😲
I mean, it’s already iffy to assume than “only one person can come up with a given idea at a time”, it gets worse when “whichever gets to patent first is the only possible inventor”, but waiting 5 or 15 years after the fact just to be granted a monopoly on the invention… is insane.
It’s not important when the application became a patent, it’s important when it was filed and what it contained
Maybe I’m missing something, but how can anyone be accused of copying a patented work, if they announce or release their product before a patent gets published?
Sure, they probably should have filed an application themselves, but if the backlog to even look at an application is 18 months, then what happens of person A files an application, then 12 months later person B files a similar application, and they just sit there? Should person B wait until their application gets processed (positively or negatively), before announcing or releasing anything? What about products released with a “Patent pending” notice, are they just a gamble?
What I seem to understand for this case, is that Masimo has been filing multiple provisionals for different patents over 15 years, they may have approached Apple to license some of them, then when Apple announced their own product, Masimo hurried up to fix the wording on a bunch of the provisionals to match Apple’s product, and filed them as finals.
From an external point of view, what I see is the publication of a product using non-patented technology that should be considered prior art and render all those patents invalid.
A couple things that I didn’t make too clear that may help sort some of these things out:
patent applications, provisional or not, are published (unless specifically filed to not be, but 95% of applications I looked at were published). But I didn’t think inventors would search patent databases before inventing…
Filing date is the easiest way to establish prior art date, not the only one. If two inventions are similar and filed close in time to each other they could show additional things to establish an earlier date. I forget the specifics but it regularly happened when I would use prior art within a year of the filing date to reject the application that the applicant would come back with notes from meetings or emails or other supporting documents to establish a new prior art date and invalidate my rejection, a product release would qualify, but it has to be before the filing date of the provisional or application where the infringed process is disclosed.
From the limited details I know about the case it looks like apple wanted to use the masimo process, even approached them but then backed out and apple didn’t use a different enough process in their watches to avoid infringement.
That seems to me like apple doesn’t have a prior art date before masimo for the process used since they approached masimo and the small sections of arguments I’ve seen from apple are focused on the length of time between application and patent and that at the time masimo was not making consumer devices. Both of which have little to nothing to do with infringement. If their arguments were about the difference in their process vs massimo, or notes or something detailing development before approaching masimo I would have a more favorable eye towards apple.
Again I might be missing something because I have not really read up on this except highlights from articles and a passing interest because of my old job. But was trying to provide some insight to the patent side of it.
Additionally, the claimed infringement relates to the fact that it’s reflective pulse oximetry using three or more sensors. Your Garmin and old Apple watch aren’t infringing because they use two sensors. I think the patent in its current state should not have been granted. It would be like patenting the placement of three or more CPU sockets on motherboards that fit in a certain rack size.
Well if it was their IP, and they had it in a product, it’s theirs. They registered it over 10 years ago. Did Apple just magically come up with the same idea, or did they see and copy it?
A patent troll usually sits on patents they don’t use. This is a legitimate company with products. A small guy that cannot afford to file paperwork for all their stuff immediately shouldn’t be penalised.
One thing that is weird is that apple always has a lot of people ready to defend the big multi-billion dollar corp.
They registered it over 10 years ago. […] or did they see and copy it?
You can see patents once they get published, not when the provisional claim gets filed… so no, Apple could not see and copy it.
Apple just magically come up with the same idea
According to Masimo, Apple lured some engineers from Masimo to develop a solution… that happened to be similar enough that Masimo could file, and this time publish a patent after the fact that made Apple infringe it.
a lot of people ready to defend the big multi-billion dollar corp.
Even more people look at the finger and miss the Moon of a broken patent aystem.
That’s even worse. When they’re hiring multiple devs from there, they cannot claim they didn’t know it existed. Also, if the product actually exists, they don’t need to see a patent filing to copy it…
The first is some little guy comes to market, a competitor sees their product, and figures they can out-lawyer them in court. A great example is Fox pealess whistles. A variant of this is hiring experts who previously worked on patented or patentable material and having them copy the work without following reverse engineering practices in order to make sure you don’t violate your previous employer’s patents.
The second one is a patent troll gets an overly broad patent where anyone else doing work in the industry is going to infringe, mostly because the patent fails the obviousness test or there is prior art that the patent examiner isn’t aware of. The SCO patents generally fall under this (as well as MS patenting Windows in the context of computers, Apple with their rounded rectangles, and others I can’t bother to remember.
There are relatively rare cases where two inventors come up with the same idea to solve a problem (the flushing toilet is one) or someone reads filed patents and decides to copy the method directly, rather than obtaining the results using a different process.
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From the Apple claims:
Sounds to me like that should be illegal, no matter who does it.
I agree, which is why I’m kinda happy this happened. Big companies (such as Apple) are notorious for this practice, so now that one of them is a victim, well, I was gonna say “maybe something will finally be done about it” but we all know that won’t happen so at least we can revel in the irony a bit.
I used to be a patent examiner and provisional applications were filed to secure a “prior art date” before everything is finalized, and when I was there had to be followed up within a year with a regular application and only the processes described in the provisional get the provisional date.
You could file a new application in addition to older ones to add processes but the new added stuff gets the new filing date while the already described stuff gets the older date.
And it regularly took 2-3 years for an application to become a patent, and that was a relatively quick one without much back and forth, our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up by an examiner. It’s not important when the application became a patent, it’s important when it was filed and what it contained.
I haven’t looked at the specifics in this case (I really don’t miss being an examiner), but patent filing date and prior art dates are complicated and of course apple is going to try and make it sound like they didn’t infringe and masimo is going to try to make it sound like they did. Apple playing games with wording and product release dates is not really relevant. If apple developed the technology they can show their notes and get a prior art date before the masimo provisional application, because it didn’t just show up in their watch the day it was released.
That’s insane 😲
I mean, it’s already iffy to assume than “only one person can come up with a given idea at a time”, it gets worse when “whichever gets to patent first is the only possible inventor”, but waiting 5 or 15 years after the fact just to be granted a monopoly on the invention… is insane.
Maybe I’m missing something, but how can anyone be accused of copying a patented work, if they announce or release their product before a patent gets published?
Sure, they probably should have filed an application themselves, but if the backlog to even look at an application is 18 months, then what happens of person A files an application, then 12 months later person B files a similar application, and they just sit there? Should person B wait until their application gets processed (positively or negatively), before announcing or releasing anything? What about products released with a “Patent pending” notice, are they just a gamble?
What I seem to understand for this case, is that Masimo has been filing multiple provisionals for different patents over 15 years, they may have approached Apple to license some of them, then when Apple announced their own product, Masimo hurried up to fix the wording on a bunch of the provisionals to match Apple’s product, and filed them as finals.
From an external point of view, what I see is the publication of a product using non-patented technology that should be considered prior art and render all those patents invalid.
A couple things that I didn’t make too clear that may help sort some of these things out:
From the limited details I know about the case it looks like apple wanted to use the masimo process, even approached them but then backed out and apple didn’t use a different enough process in their watches to avoid infringement.
That seems to me like apple doesn’t have a prior art date before masimo for the process used since they approached masimo and the small sections of arguments I’ve seen from apple are focused on the length of time between application and patent and that at the time masimo was not making consumer devices. Both of which have little to nothing to do with infringement. If their arguments were about the difference in their process vs massimo, or notes or something detailing development before approaching masimo I would have a more favorable eye towards apple.
Again I might be missing something because I have not really read up on this except highlights from articles and a passing interest because of my old job. But was trying to provide some insight to the patent side of it.
Additionally, the claimed infringement relates to the fact that it’s reflective pulse oximetry using three or more sensors. Your Garmin and old Apple watch aren’t infringing because they use two sensors. I think the patent in its current state should not have been granted. It would be like patenting the placement of three or more CPU sockets on motherboards that fit in a certain rack size.
Well if it was their IP, and they had it in a product, it’s theirs. They registered it over 10 years ago. Did Apple just magically come up with the same idea, or did they see and copy it?
A patent troll usually sits on patents they don’t use. This is a legitimate company with products. A small guy that cannot afford to file paperwork for all their stuff immediately shouldn’t be penalised.
One thing that is weird is that apple always has a lot of people ready to defend the big multi-billion dollar corp.
You can see patents once they get published, not when the provisional claim gets filed… so no, Apple could not see and copy it.
According to Masimo, Apple lured some engineers from Masimo to develop a solution… that happened to be similar enough that Masimo could file, and this time publish a patent after the fact that made Apple infringe it.
Even more people look at the finger and miss the Moon of a broken patent aystem.
That’s even worse. When they’re hiring multiple devs from there, they cannot claim they didn’t know it existed. Also, if the product actually exists, they don’t need to see a patent filing to copy it…
There are generally 2 ways patents get infringed.
The first is some little guy comes to market, a competitor sees their product, and figures they can out-lawyer them in court. A great example is Fox pealess whistles. A variant of this is hiring experts who previously worked on patented or patentable material and having them copy the work without following reverse engineering practices in order to make sure you don’t violate your previous employer’s patents.
The second one is a patent troll gets an overly broad patent where anyone else doing work in the industry is going to infringe, mostly because the patent fails the obviousness test or there is prior art that the patent examiner isn’t aware of. The SCO patents generally fall under this (as well as MS patenting Windows in the context of computers, Apple with their rounded rectangles, and others I can’t bother to remember.
There are relatively rare cases where two inventors come up with the same idea to solve a problem (the flushing toilet is one) or someone reads filed patents and decides to copy the method directly, rather than obtaining the results using a different process.