IP extremism brought the EU SEP Regulation, may now weaken the USITC

https://www.linkedin.com/feed/update/urn:li:activity:7183289203655393280

Narrow-minded IP extremism brought the EU SEP Regulation and may now bring an ITC reform. It's a mix of bad judicial decisions, deep-pocketed (and partly deceptive) lobbying by net licensees (with overreaching demands) and the IP community's ideological, ineffective response. That's a recipe for making the pendulum swing too far in the other direction.

Instinctive and indiscriminate extremism leads many in the IP community to believe Apple is recklessly infringing Watch plaintiff Masimo's supposedly tremendous patents.

That's an urban legend. It's no more real than Rudolph the Red-Nosed Reindeer.

For IP's sake, Masimo.should (and deserves to) lose.

One can disagree with Apple on patent policy, and there have been meritorious patent infringement allegations against Apple. But to support Masimo here means to throw all principles overboard and to ignore the specifics of that case, only because of how Apple is (rightly.or wrongly) perceived in general and/or for ideological reasons.

The first thing to understand is that a company may be a legitimate innovator and even make its own products, yet may employ litigation tactics that are totally inconsistent with that narrative.

What should give everyone pause is that Apple keeps selling its Watches and there is no sign of reduced demand as a result of disabling that pulse oximetry feature. Therefore, even if Masimo's case was meritorious, the commercial value of those patents to Apple is extremely low. Some may not like to realize that, but the experiment has delivered a clear result: buyers don't care.

It should also give people pause that Masimo brought claims in district court that the judge threw out in part and the remainder was trade secrets stuff that all jurors but one also wanted to find against.

All of that would already be reason enough to be highly skeptical of certain misconceptions and disinformation. Not to be skeptical in light of the above facts means to be gullible. But the following two facts are really damning:

1. In order to have an infringement read, they had to file continuations 12 years after the original applications and within a week or so of the launch of the first Apple Watch to feature pulse oximetry.

Note that they're a medical device maker, not a consumer electronics company. That's also the reason for this:

2. They ran to the ITC with neither a competing product nor a domestic licensing industry. All they had was drawings and a "trust us, we'll make something" announcement aka vaporware.

The best thing to happen here is for the Federal Circuit to overrule the ITC, possibly with harsh words, and for the ITC's leadership to reflect and to think about how they've been digging themselves an ever bigger hole in this case. Maybe there will then also be more rationality about this among IP thought leaders.

There's no irreparable harm to Masimo, but potentially to the ITC here.