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Coda on a Guardian of U.S. Innovation

The Biden administration has declined to hand Apple a “get out of jail free” card. That’s good for U.S. innovation leadership.

Patent-infringing models of the Apple Watch remain subject to an import exclusion order accompanying the U.S. International Trade Commission’s October determination that these devices violate U.S. innovator Masimo’s pulse oximeter patents.

The U.S. Trade Representative had 60 days to review the USITC ruling and potentially could have reversed it. Thankfully for the rule of law, property rights and U.S. competitiveness, USTR didn’t pull the rug from under Masimo, which invented the blood-oxygen sensor technology copied in Apple Watch Series 9 and Apple Watch Ultra 2 devices.

The Christmas Day deadline for USTR’s review ended with a holiday blessing for Masimo and a deserved lump of coal for Apple.

Upholding this exclusion order wasn’t a certainty. The Obama-Biden administration intervened for Apple in its USITC loss to Samsung concerning iPad and iPhone models. And President Biden has weaponized antitrust and other regulatory takings to the extreme, including as a means of undermining exclusive intellectual property rights.

Apple now continues its predatory infringement strategy. Apple—hardly alone as a practitioner of predatory infringement—would rather deliver the “kiss of death” to innovative firms.

The company is appealing the USITC case to the Federal Circuit Court of Appeals—the next step in ongoing, multipronged patent litigation. Thus, an American innovator’s IP remains uncertain and of tenuous reliability.

And as Locke’s Notebook has explained, the USITC remains under assault by deep-pocketed implementers of others’ inventions. This anti-IP warfare diminishes American innovation leadership.

Of course, Apple could simply license Masimo’s patent-protected innovation and pay royalties for its authorized use. It could have legitimized its watches and realized more Christmas sales.

In light of its Apple Watch patent infringement loss, perhaps it’s time that Apple start behaving like a good corporate citizen. Instead of stealing innovators’ IP via predatory infringement—especially that of American innovators—it’s time for recidivist predatory infringers to begin respecting property rights and the institutions for defending those rights. The time has come to license first and use others’ IP only with authorization.

As it stands, these predatory patent infringers are little more than “commercial implementers who’d love to get . . . state-of-the-art, standard-setting patents [and other patented inventions] at bargain-basement rates.” Their misbehavior aids China and harms the United States. It’s past time to choose loyalties.  And there’s only one right answer.

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