The IT Nerd

The US Court of Appeals for the Federal Circuit has just denied Apple’s request to pause the ban of the Apple Watch Series 9 and Ultra 2. The renewed ban takes effect tomorrow at 5PM EST. Here’s the details:

Apple on Wednesday failed to convince a federal appeals court to allow U.S. imports of Apple Watches with technology for reading blood-oxygen levels while it challenges a government tribunal’s decision that the devices infringe patents belonging to medical technology company Masimo.

The ruling by the U.S. Court of Appeals for the Federal Circuit means the affected watches cannot be imported while Apple appeals the underlying ban issued by the U.S. International Trade Commission.

I guess that this fix that Apple has apparently come up with will come into play starting tomorrow. Otherwise you might want to run to your nearest Apple Store and buy an Apple Watch while you can. Alternately, you should still be able to still get them at places like Best Buy and Amazon. And to be clear, this only applies to the USA. If you live outside of the USA, this is a non-event.

Again, I have to wonder why Apple doesn’t just pay Masimo off and put an end to this. It would be far more efficient than all these legal gymnastics and consumer angst.

Clearly Apple is not counting on the courts to rescue Apple from the Apple Watch patent mess that they find themselves in. According to a report, here’s what Apple is working on:

Winning the brief stay fulfilled one part of Apple’s multi-pronged approach to recover from the ITC’s decision. Apple’s plans for a comprehensive solution to the patent fight also include redeveloped software now submitted to a US customs agency, that could allow it to sell non-infringing versions of the devices as soon as Jan 12, all while continuing to appeal the ITC loss.

This is an interesting approach. I say that because Masimo’s CEO has said that the patents that Apple violated are hardware patents. Perhaps I am missing something, but how do you fix a hardware issue with software? I guess we’re going to find out because if Apple isn’t going to pay off Masimo, and if they lose in court on appeal, this software fix is their only option.

In a plot twist that I am sure is making Apple very happy, an appeals court has paused the ban on Apple Watch sales in the US. Reuters has the details:

Apple scored a victory on Wednesday as a U.S. appeals court paused a government commission’s import ban on some of its popular Apple smartwatches following a patent dispute with medical-technology firm Masimo. 

The tech giant had filed an emergency request for the U.S. Court of Appeals for the Federal Circuit to halt the order after appealing the U.S. International Trade Commission’s (ITC) decision that it had infringed Masimo’s patents.

The full decision is here. But here is the TL:DR. The United States Court of Appeals for the Federal Circuit has granted an interim stay from January 5, 2024 to January 10, 2024 while the court reviews Apple’s request for a full stay for the length of the appeal. The International Trade Commission in turn now has until January 10 to file its response to Apple’s request for a full stay while the appeal plays out. However, this does not mean that Apple can start selling Apple Watch 9 and Ultra 2 models immediately. That’s because US Customs And Border Protection has to take this court order and put processes in place to re-allow imports of Apple Watch products into the US. Assuming that things don’t come to a screeching halt again. But all things considered, this is still a win of sorts for Apple.

UPDATE: To clarify, Apple can now sell Apple Watch Series 9 and Ultra 2 until at least January 10, 2024 where another extension would need to be granted.

To the shock of nobody, Apple is appealing the ban of the Apple Watch in the US. The company spoke to Reuters and had this to say:

An Apple spokesperson said the company has appealed the ban to the U.S. Court of Appeals for the Federal Circuit in Washington.

“We strongly disagree with the USITC decision and resulting exclusion order, and are taking all measures to return Apple Watch Series 9 and Apple Watch Ultra 2 to customers in the U.S. as soon as possible,” Apple said in a statement on Tuesday.

They can strongly disagree all they want. But they’re in a pretty bad spot. Clearly Apple who has a history of “Sherlocking” tech has got caught doing so. You have to wonder what Apple will do next if this appeal fails. I guess we’re about to find out.

The Justice Department and the FTC are apparently deciding to investigate Apple over their attempts to block Beeper. Here’s the story from the New York Times that might be paywalled for you. But I’ll give you the TL:DR:

The Justice Department has taken interest in the case. Beeper Mini met with the department’s antitrust lawyers on Dec. 12, two people familiar with the meeting said. Eric Migicovsky, a co-founder of the app’s parent company, Beeper, declined to comment on the meeting, but the department is in the middle of a four-year-old investigation into Apple’s anticompetitive behavior.

The Federal Trade Commission said in a blog post on Thursday that it would scrutinize “dominant” players that “use privacy and security as a justification to disallow interoperability” between services. The post did not name any companies.

The battle also caught the attention of the Senate Judiciary subcommittee on antitrust. The committee’s leadership — Senators Amy Klobuchar, Democrat of Minnesota, and Mike Lee, Republican of Utah — wrote a letter to the Justice Department expressing concern that Apple was snuffing out competition.

I’ve said this before and I will say it again. Beeper doesn’t have a right to just hack its way into iMessage just to give Android users the blue bubble experience. Conversely, Apple has every right to secure iMessage to keep Beeper out, seeing as Beeper and those who use the Beeper Mini service are unauthorized users of iMessage. Hopefully some common sense prevails here and Beeper gets shunted to the dustbin of history as this topic is really taking up way too much oxygen in the room.

Earlier today I posted a story about MacRumors finding that Beeper was going to use jailbroken iPhones to keep their iMessage on Android service alive. I can now say that this Reddit thread confirms these plans. In that thread are two links. This one confirms the plans that MacRumors discovered and adds a lot more detail. And it also reveals that you can use a Linux computer to get your iMessage on Android fix as well.

Then there’s this link. I encourage you to read it as it has a lot of talking points from Beeper CEO Eric Migicovsky to make them look like they’re the good guy in this fight. And you’re free to draw your own conclusions on that. But here’s my conclusion on this.

Everything that they argue in that link is complete BS.

Beeper does not have the right to hack or reverse engineer they way into iMessage just because Android users don’t have the same messaging experience as iPhone users. I don’t care if Apple is 1% of the market or 100% of the market in the US. That’s in my mind is not something that they can simply do. And to spin it as they’re making things more secure for Android users or opening things up for Android users or somehow they’re making the world a better place is a false economy. Apple on the other hand has every right to do whatever they need to do to shut Beeper down because iMessage is Apple’s sandbox and they get to decide who plays in it. Which at the moment is nobody that isn’t Apple. In fact, and I rarely say this, I don’t understand how Apple with their army of iLawyers haven’t sued Beeper out of existence. Their cat and mouse game with Beeper isn’t a long term solution to this problem. Apple who has been known to lower the boom on companies for less should just lower the boom on Beeper and be done with this.

And I have a message for any Android user who is considering using Beeper’s workaround. You simply deserve better than what Beeper is offering if you really want iMessage on your Android device. Maybe that means Apple is “encouraged” to open iMessage up. Or “encouraged” to embrace other standards such as RCS. Or both Apple and Google are “encouraged” to come up with a universal standard of some sort to make the blue bubble/green bubble thing moot. Whatever that looks like, it would be far better than what Beeper has brought to the table. And that’s what Android (and iOS) users should be advocating for. Strongly. The fact is that if Android users have to hop though this many hoops to get iMessage on Android, it would consume a lot less time and effort on their part to just buy an iPhone if they really want to be a blue bubble person. Beeper isn’t putting forth a solution here. What they’re putting forth is a panacea that will eventually get taken out, destroyed, and burned in a bonfire by Apple. Which in turn will put Android users back to square one in terms of having the iMessage experience. Meaning it’s simply not worth investing their time, effort, and potentially money in chasing a pipe dream.

From the “this is sketchy AF” department comes this report from MacRumors that Beeper is so desperate to get Beeper Mini working again, that they are turning to using jailbroken iPhones to do it:

The developers of Beeper Mini, the iMessage for Android app, are back with another attempt to keep Apple’s blue bubbles onside, and this time they will ask users to generate their iMessage registration data with the help of jailbroken iPhones, MacRumors has learned.

And:

In its latest effort to keep the service afloat, Beeper will suggest that users get hold of an old iPhone to get iMessage working on their Android phone. Users will then be asked to install a free Beeper tool to generate an iMessage registration code that will reinstate the ability to register phone numbers on the service. The catch is that the iPhone must first be jailbroken, and it must be plugged into power, at home, and connected to Wi-Fi for periodic registration re-requests.

If users don’t have access to an old iPhone for jailbreaking in order to complete the registration process, that’s okay – Beeper will rent them one for a small monthly fee. The developers say this service will be available in the new year, if there is enough interest. The plan was leaked ahead of time when a Beeper blog post was published then swiftly removed, but not before a snapshot was generated by the Internet Archive’s Wayback Machine, as spotted by MacRumors contributor Aaron Perris.

The fact that Beeper has to resort to increasingly sketchy methods to get and keep their service working only serves to underline the fact that the company is on the wrong side of this issue. On top of that, you have to wonder how many Android users are going to be willing to hop through these hoops to get that blue bubble experience.

At this point, if Android users really want the blue bubble experience this badly, then they should just buy an iPhone and be done with it. To me it seems far easier than this nonsense.

Tomorrow, Apple is going to start winding down sales of the Apple Watch 9 and Apple Watch Ultra 2 in the US to comply with an import ban that’s been slapped on them because they “borrowed” some patents that are owned by a company called Masimo. You can click here to get the details on that. But this isn’t trivial for Apple. This ban could cost Apple up to $400 million in sales this holiday season. Though I would say that there’s some rush buying going on right now which may blunt that somewhat. In any case, Apple needs to get this sorted quickly because they don’t want to leave that cash on the table. Thus the question is, what can Apple do to get this sorted? I think there are four possibilities that Apple has at their disposal. And I will rank them from most likely to least likely:

• Pay Masimo: This is the most likely outcome. At some point Apple will have to come to the table and work out something where they license Masimo’s tech. Now from what I can tell hasn’t been interested in talking to Masimo. But I suspect that this will change the longer that this goes.
• Hope That President Biden Saves Them: The fact that Apple is about to pull the Apple Watch from sale in the US is clearly a pressure tactic to get the public to push The White House to veto the ban. Now they’ve done this once before for Apple when Apple ran afoul of a bunch of patents owned by Samsung that Apple “borrowed” for the iPhone. But such vetos are rare. And while anything is possible, I don’t expect a veto to happen.
• Find a workaround: The word on the street is that Apple is trying to find a software method to work around the patents that they “borrowed” from Masimo. The thing is, the patents in question are hardware patents. So I question if Apple could pull this off in a way that would keep the legal dogs at bay. Though I will say that anything is possible.
• Pull the feature in the US: If Apple needs to get the Apple Watch back on sale, and any of the previous three options that I have presented aren’t feasible or workable, Apple might have no option but to pull the blood oxygen functionality from the Apple Watch. That would be a desperation move for sure. And honestly, it would not shock me if a class action lawsuit were filed by angry Apple Watch owners in the US who bought the watch with that functionality in mind if Apple did go that route. I really think that they would have to be in a dark place to go down that road.

What do you think? What should Apple do? Are there any options that you could come up with that Apple should explore? Leave a comment below and share your thoughts.

Earlier this week, Beeper Minin was having issues, again, with their iMessage on Android service. As I type this, at least 60% of their users are affected. And like their last outage, you can thank Apple for Beeper’s issues.

Now fast forward to today. This Reddit post says that the company has a fix that is coming tomorrow. But the Devil is in the detail:

The fact that you need a Mac needs that you have to hop through a bunch of hoops to make it work. It’s not worth it if it were me. But if you really want iMessage on your Android phone, I guess you have to do what you need to do to get your fix.

I have to wonder how long it would take before Apple shuts them down again seeing as Beeper has basically telegraphed what they are doing so that Apple can figure out how to kill it. I also wonder how long Apple is going to play cat and mouse with these guys before sending in the iLawyers.

Bad news for those who want an Apple Watch for Christmas.

In a statement shared with 9to5Mac, Apple said the Series 9 and Ultra 2 will no longer be available to purchase on Apple’s online store in the U.S. starting December 21.

Now why is this happening? Back in October the ITC ordered a ban on some Apple Watch imports into the U.S. after finding that Apple violated Masimo’s patents related to pulse oximetry. This is part of a long running battle between Masimo and Apple that has more plot twists than a Marvel Movie. Now this could be reversed by President Biden, but that may not happen as those sorts of reversals are rare. Thus it means that the Apple Watch could be off store shelves at Apple’s most profitable time of the year. Though Apple is going to appeal this.

If you want more background on this, here’s a couple of videos that explain this further: