> Apple first approached Masimo more than a decade ago, floating the idea of a partnership, and potentially an acquisition. Instead, he says, the tech giant began a campaign to hire away his top talent and to plunder his company’s intellectual property.
Read this pattern through Google (they have PDFs provided), isn’t it describing the finger sensor pretty much every health care provider uses? Especially the figures they put in, non of them looks like a consumer daily device.
Not a typical pattern troll but an innovative one. Now they can pretty much go after any companies in this area! I feel they are after Apple just because Apple Watch succeeded.
Yeah, I'd really love to see some commentary from someone with experience in the medical device industry about whether there's anything novel in the patent. It was originally filed in 2008, but that was thirty years after Minolta made the first fingertip pulse oximetry sensor. They might be using different wavelengths of light, but Apple could be as well.
Everyone saying "there's nothing new here" : there's a whole body of law governing how this is decided. You can be 100% certain that Apple's lawyers are exploiting it to the max.
But simply asserting that is not going to change the outcome any.
> I feel they are after Apple just because Apple Watch succeeded.
Exactly. Why would they sue an unsuccessful company with no money?
>The present disclosure relates to noninvasive methods, devices, and systems for measuring various blood constituents or analytes, such as glucose. In an embodiment, a light source comprises LEDs and super-luminescent LEDs. The light source emits light at least wavelengths of about 1610 nm, about 1640 nm, and about 1665 nm.
Since when is the Apple watch measureing glucose? It appears they are not fighting about something the was in the original scope of the patent but something that was added/emphasized later.
Difficult to pick sides here.
Massimo was/is the incumbent in their medical space and they are now, to some extend, being disrupted by a consumer-market focused company. Of course they need to defend their territory. On the other hand, this is also not the first instance where Apple is accused of predatory behavior towards potential suppliers.
> Since when is the Apple watch measureing glucose?
the patent says, "various blood constituents or analytes"
oxygen is a constituent, oxygenation is an analyte, just as an example
the word you're quoting, "glucose" appears after the term "such as", which means "possibly including, and not limited to", so this isn't the gotcha you may think it is
If you can’t implement a patent without spending millions of dollars on R&D filling in the blanks it isn’t an invention. This was an idea, and it shouldn’t have been granted a patent. *IMO NAL
Patenting a UI layout is even more rediculous. These companies are retracing the arbitrary decisions made to solve a problem, then widening the parameters to cover all possible solutions in a vague patent to use as a legal landmine for any competition that might wander into the same sector.
Looks pretty bogus, almost all claims are dependent on claim 1, which wasn't novel:
> 1) A user interface method, comprising:
detecting a touch;
determining a user interface mode when a touch is detected;
displaying one or more GUI elements based on the user interface mode; and
enabling the functionality of the GUI element.
The term you're after is "reasonable experimentation."
The idea is: if a "lab assistant" can determine the exact concentrations, temperatures, pressures, manufacturing steps, etc. then it is still an invention. In other words, it's ok if practicing it requires reasonable experimentation.
You might disagree with that, but that's what the law says.
The USPTO page on enablement is filled with examples of hardware and software patents that were rejected, because of hand-waving generalization. There needs to be some accountability for approving these bogus patents.
There's a lot more to this story than just pulse oximeters. Years ago Apple approached the company about an acquisition, but presumably this was in bad faith; they ended up looting the company for information gained during those talks, as well as hiring away 20 of their employees.
Why is hiring from a company an issue. The company may have a point about their IP being looted but they don’t own these employees. Assuming the employees only brought their know how and not actual technology and software, I don’t see the issue here. Would they not be allowed to use their expertise to develop a like system without violating the existing patent?
Those employees can totally create a cleanroom implementation, true. That's very difficult in any domain. I could totally create software that does what my employer does, but could I do it without using any of the solutions I specifically created for them? It would be a challenge.
The restrictions are only against using protectable trade secrets or patented technology. Protectable trade secrets don't include things that are generally known within an industry or that the prior employer didn't treat as a trade secret (e.g., didn't take steps to prevent from becoming generally known).
> Apple's Friday lawsuit said Mountain View, California-based Rivos has hired over 40 of its former employees in the past year to work on competing "system-on-chip" (SoC) technology, and that at least two former Apple engineers took gigabytes of confidential information with them to Rivos.
Well you can't go around taking your employer's data with you.
I was recently reading the New York Court of Appeals ruling on People v Aleynikov, which involves someone copying Goldman Sachs's software and taking it to a new startup. New York has a criminal offense called "Unlawful use of secret scientific material" that covered this case. Aleynikov argued that it only covers tangible representations of scientific material (which the court ruled covers computer source code), and that computer files are not tangible. The court disagreed, but did say:
Defendant contends that if "tangible" means "having physical form," then the statutory term "tangible reproduction" would involve a redundancy because all computer data is stored in some physical medium. We disagree. Someone with a photographic memory who memorized a piece of source code would not be making a tangible reproduction of the code (see generally Bottone, 365 F2d at 393 [referring to a hypothetical "case where a carefully guarded secret formula was memorized, carried away in the recesses of a thievish mind and placed in writing only after a boundary had been crossed"]). It is true that copying secret scientific material solely by memorizing it would not fall under the statute for a separate reason, i.e., that{*31 NY3d at 400} it would not be "writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material" (Penal Law § 165.07). Nevertheless, the word "tangible," as we interpret it, does not introduce redundancy; it adds a modest element to "reproduction," serving to emphasize that the crime consists in making a physical, not a mental, copy of secret scientific material.
So anyway, you're not violating New York State law if you remember how your system works and you take it to your next employer. Contracts you sign and patent law still exist, however.
I agree with the court, but I do wonder where the line is drawn? Aren't all memories tangible (in a brain sense) in a sense and sharing ideas is tangible reproduction? Becuase the other person re-recreated them in their own brain. The brain being the "mechanical, electrical" device doing the recording.
That’s somewhat scary to me. What do you mean by data? If I figure out how to build say a really efficient vector database at company A and then company B hires me and I figure a really efficient vector database would be useful there, can I not implement a new one for company B?
If all they hired you to do is make a random database, and you do so in a really efficient manner, then you still own the right to use your skills to make a really efficient database for others. If they hire you to make a specific database, and you make it really efficient, then they probably own the rights to such a specific database, but you still retain the rights to make other kinds of databases in a really efficient manner. If they hire you to develop database to a certain degree of efficiency, then they might own the techniques you used to make it efficient, but this should be blatantly spelled out in your employment contract, and you should have been appropriately compensated for the inability to use this particular skillset in the future.
These conversations always boil down to someone coming up with a very generalized solution as a talking point, but that's not what anyone is referring to. We're talking about specific solutions, often tailored to a particular domain.
It's not a perfect analogy, but I like to think of it in terms of patterns vs algorithms.
Very much a speak to a lawyer moment. Designing an efficient vector database from scratch should be fine, but you likely will need to document this process for defense in court. And you may not use any resources from your previous job.
But note infringing on a patent is different than being an expert.
2/40 poached employees stealing data is almost margin-of-error levels. I wouldn't be surprised if Rivos genuinely had no idea they were using Apple IP.
> Would they not be allowed to use their expertise to develop and like system without violating the existing patent?
Maybe, but that's kinda the point of this lawsuit. As Apple implemented it, they did violate portions of the patent. Not every part of their claim was considered a violation, but some of it certainly was:
> As a result, the Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent.
If I'm understanding it correctly, the assertion is that Apple feigned interest in collaboration as a pretext to put themselves in a position to hire away employees. If that's true, then it's certainly dishonest even if it isn't illegal. It could also be concerning if large companies can smother smaller competitors in the cradle.
This happens all the time, imagine every deal goes thru, it doesn’t, and there will be meetings. Could be that their asking price was too high and it went thru and Apple hires some of them instead(legally), but the employees was dumb enough to use their knowledge of their previous product too much
> the assertion is that Apple feigned interest in collaboration as a pretext to put themselves in a position to hire away employees
If that was their plan, and they weren’t stupid, that will be extremely hard to prove.
Reason: if their plan was “we want to have this tech” and started talks in good faith that led nowhere, the same easily could have happened.
It’s a standard negotiation tactic to let ‘them’ know/think that you have alternatives, so during negotiations, Apple may have hinted that they would do it themselves if negotiations broke down, with the side effect of informing personnel of Masimo that opportunities might become available if negotiations broke down.
If, after negotiations broke down, Apple really decided “let’s do it ourselves” and put up job descriptions, I don’t think they’d have to explicitly call Masimo personnel to apply for those jobs, as they’ll know there are good career opportunities there.
> It could also be concerning if large companies can smother smaller competitors in the cradle.
I think that’s unavoidable. If SmallCo has a feature in their product that BigCo doesn’t have, commenters will deride them for it. If they add it in basic form, commenters will also deride them for it, and if they add it in superior form, commenters will also deride them for it, calling it Sherlocking.
The only way to prevent that would be to pay SmallCo for permission to clone the feature. If SmallCo, knowing that, sets an unrealistic price, what can BigCo do, other than ending negotiations and building the feature themselves? If they don’t build it at, commenters will deride them for it, so that’s not an option.
Conversely, Apple has the cash on hand to buy most companies and not even notice a drop in cash in hand. Plus they buy companies all the time... but this once, they didn't -- but hired 20 people from there.
In other words, the fact that it is normal for them to behave differently is at least as damning is it is exculpating.
Apple doesn't need to feign interest to hire away employees, it doesn't need to put itself in any kind of "position".
It literally just has to create job openings and have its recruiters reach out the employees with attractive offers.
And there's nothing dishonest about that whatsoever. As I mentioned in another comment, Masimo had revenue of $1.24 billion last year. They're not a tiny mom and pop company. It's their job to pay their talent enough, and treat them well enough, so that they stay. If they fail to do so, then that's on them.
(And of course, companies undervalue their employees all the time. It's why the best way to progress in your career is often to be constantly switching companies, because another company will pay you what you're worth when your present company refuses.)
Apple should know better than to use its weight to tear the flesh off of small players in new markets. This isn't innovation - this is pouring unrelated economic gains from one economy into a completely different market segment. It's wholly and utterly unfair.
A watch company should not be a movie studio.
A movie studio should not be a grocery store.
A search engine paying for 100% placement should not also be a music platform, movie platform, thermostat vendor, cloud vendor, ...
This is all levels of fucked.
The government needs to break these obese mafia companies apart. It'll be better for competition and the consumer.
Fair competition would help more rewards flow directly to innovators. Instead, these Megatech companies staffed with their reams of PMs grow like a blob [1, 2] into anything that pops up on their radar.
> Apple should know better than to use its weight to tear the flesh off of small players in new markets
...but that's where the profits are. Apple, like Walmart and big-hair rock bands back in the day, thrive by throwing its weight around and taking advantage of small-time suppliers (or groupies) who'd do anything to get a shot at the bug leagues - including shouldering disproportionate risks for an illusory union used to string them along.
> A search engine paying for 100% placement should not also be a music platform, movie platform, thermostat vendor, cloud vendor, ...
Then what's the lawful distance between goods and services that company should be able to offer?
I get the position that big is bad, and I don't entirely disagree with that, but selling watches offers no unfair benefit to apple in the movie studio business, and vice versa. It's not like they're tying one good to another, or leveraging market power in one to gain market power in the other.
So if we want to say that you can't run a company that makes consumer electronic devices and a movie studio (see also, Sony, Amazon), then what's the limit?
Should a company that makes motorcycles be allowed to sell, say, fine stringed instruments (Yamaha)?
What about a company that makes industrial adhesives? Should they be allowed to also sell office supplies (3M)?
> It's not like they're tying one good to another, or leveraging market power in one to gain market power in the other.
That's absolutely what's happening!
> So if we want to say that you can't run a company that makes consumer electronic devices and a movie studio (see also, Sony, Amazon), then what's the limit?
There are a lot of possible litmus tests for this.
Is the company using the new market to put eyeballs on its existing product offering, making itself stronger at the expense of players in the new market (Amazon Prime Movies, Apple TV)?
Is the company undercutting the costs of existing incumbents by offering products and services below cost (Apple TV)?
Is the company hiring away talent from the other market or building exclusive partnerships (Apple Automotive)?
Do consumer choices get made due to benefits of bundling with an unrelated market segment (Amazon Prime)?
Does it help the company streamline delivery of their platform into the new market and collect taxes or information in a new way (Apple and Google Pay)?
They don't know who specifically to reach out to in many cases. The alleged dishonest behavior is feigning interest in acquiring a potential competitor in order to gain information about the identities of the engineering team that works there.
Okay, but it did feign interest to get awareness of the employees to poach. Totally agree, employees have autonomy in that sense, but we are just judging the actions of Apple not the mortality of employment.
If it were just as you said, not a big deal. Happens all the time. But it wasn't, they were sneaky and disingenuous. Bad behavior deserves criticism. If I invited someone to dinner just to figure out if I should persue their wife, their wife has autonomy and what happens after is between the three parties. But the dinner was a sham, and you would be right to feel betrayed. Perhaps not a perfect analogy.
In particular in California where non-competes are illegal and unenforceable (no idea if Massimo had noncompetes, just underlining your point).
However the basis of the suit was fraudulent representation: Apple lost on the basis that they were found to be pretending to buy the company or license the tech. Have no idea if this is Apple's typical M.O. though I doubt it solely on the fact that these suits are rarely brought and they would be a juicy target.
I saw Google do this to a company I was loosely connected to. Because they were in acquisition discussions I was more closely involved than normal (but not in any inter-party meetings). My interpretation of events was incompetence on Big G's acquisition team rather than actual malice. It was a big deal for the startup but rather small for G and it didn't look like they had sent the A team over to do the deal.
I have no idea what really happened with Massimo/Apple beyond a few reports in the press.
Typical part of an acquisition process is a 'terms sheet' and usually terms sheets contain very explicit non-poaching clauses to stop the company that says they want to acquire doing an end run around the process by bulk hiring the people instead of acquiring the stock.
"We need unions... so that employees can't have the opportunities they'd have otherwise to be fairly compensated for their know-how by the companies most able to bring their talents to market." Isn't really a slam dunk IMO.
Could be. It's exceptionally hard to tell with union advocates. My partner is in one and they've done nothing but screw her over at every twist and turn, yet many in her industry still speak (genuinely) fondly of them.
Unions are like government. They can and do serve a very important, often necessary, role. However they can also be easily corrupted without special and meticulous care. We as a society seem especially bad about the burden of collective accountability over government and unions.
IMO they’re essential, but the state we end up in feels inevitable. I’m quite a pessimist as a result.
Unions are like government. In both, the most corrupt and power hungry individuals will see a way to get a ton of money from the masses by grandstanding their way to the top, and once there will move on to the next easy cash: selling out their ability to place rules on the people that pay them to the highest bidders.
I once went to a bar in Portland that had a ~20% discount if you showed them your union card when asked. If you said you didn't have a union, they'd respond: "no, you don't have a union... yet!" with a big grin on their face. Well intentioned, I'm sure. But overhearing the sheer volume of bike shedding that went on in conversations there regarding matters entirely adjacent to the folks' actual work, I can't say I want any part of it.
I'm sure you have the best of intentions, but there is potential for a conflict of interest when the union is imposed form the top-down rather than the bottom-up, no?
> My partner is in one and they've done nothing but screw her over at every twist and turn
This may very well be true, but at least in my union our employer tells individual represented employees that they can't do X for the employee because of the union, without ever informing the union of the matter (which would have immediately given our okay to the matter), and despite there being no real block to X in our contract language anyway.
I think the hiring away is a valuable tool for individual contributors. If you know how to do something that your current employer doesn't value as much as another employer, you should be free to go elsewhere. It's a check and balance on your compensation; if your current employer can't make money from your ideas and give you a reasonable cut, and someone else can, then they kind of deserve what they get.
In this case, Apple didn't want to buy an entire company just to get an algorithm. So, they found the person that came up with the algorithm and offered them more money to come up with a similar algorithm. Not illegal.
Apple has had this happen to them. They had Safari engineers hired away by Google to work on Chrome. They blocked this using back channels and got sued:
Basically, Apple wanted to under-compensate software engineers. This is bad for our field in general. It's important that ICs comply with any contracts and applicable law as they are poached, but backroom declarations of "war" or "you can't hire any of my employees unless you buy the entire company" is total horseshit that keeps software engineering compensation low.
People don't like to hear this but employees leaving for the (would be) competition with their knowledge is sort of the entire basis of capitalism and progress and fully intentional.
The basis of capitalism is the organization of the economy around capital. I don't know what the basis of progress is, but 'the proliferation of knowledge' sounds like it might be a passable start.
This isn’t the first time they’ve done it either, it’s becoming a trend with them. They lowball offer and then pull out after having the details they need to steal your tech. They’re banking on you going bankrupt before you can win a lawsuit against them.
A large part of the fault here lies with Masimo however.
This is capitalism -- it's your job to protect your company's information and trade secrets, and to pay your employees enough and treat them well enough so they don't go to a competitor. Everyone knows a potential acquisition might fall through or not be genuine in the first place, and that any potential acquirer can turn into a potential competitor in an instant. That's just business 101.
And it's not like Masimo is some mom and pop business that can't compete with Apple's salaries on 20 key employees. It had revenue of $1.24 billion last year, so come on.
All of this clearly hinges on whether Masimo had Apple actually stole trade secrets (presumably violating an explicit NDA or similar that Apple reps had signed), and whether Apple infringed on patents. The result on stolen trade secrets was a hung jury, and we'll wait for the final answer on patent infringement after presumably a sequence of appeals.
But the idea that Apple was "looting" was not confirmed by a jury, and "hiring away" treats these employees like property, which they are not. They are perfectly free to go work for Apple, and they should if Apple gives them a better deal.
Apparently most of the fault here is not Apple's, according to you.
Hell, even though they were found guilty of patent infringement, you're still, "It's not been shown that they actually did... we have to wait for the appeals!"
There's nothing hilarious, please don't be insulting.
Everybody knows that major patent trials often get reversed on appeal, and sometimes reversed yet again. Precisely because they're not clear-cut, because clear-cut cases often just get settled before going to court at all.
And yes, the jury trial already couldn't decide against Apple in terms of trade secrets.
So the idea that Apple is obviously the bad guys here simply doesn't hold water. And they certainly aren't in terms of hiring employees from a competitor, because that's just what corporations do to do each other.
Maybe this jury decided correctly on patent infringment, maybe they didn't. Patent infringement cases can be notoriously difficult to determine. If this one gets upheld after a couple of appeals, then it's a lot easier to say Apple was in the wrong.
That goes both ways though. It could be easily framed as "the jury wasn't compelled to agree with some of the poaching claims" but "did find the patent claims compelling, so there was evidently something more there".
And, like it or not, it is common and accepted to note that there was conviction/guilt upon that verdict. When someone is convicted of a crime (I'm not saying this is) the common phrasing is "they were convicted of a crime" not "maybe, we'll have to see, maybe they decided correctly, maybe they didn't, let's wait for all the appeals first". So I'm unsure why there's this caveat for Apple.
Yes, patent claims are difficult, and there's a few areas where it is even more ripe for reform.
But even then, the phrasing would still be "found to infringe on patent, overturned on appeal" - because the fact that at some point there was significant enough impetus to believe it happened is notable.
You make a big deal about Masimo "not being a mom and pop company - they have $1.24B in revenue", but that ignores the fact that Apple is there with $393B. I could equally say "Well, if Apple, with the legal resources it could afford, couldn't convince a jury that they didn't infringe two supposedly simple patents, then maybe, just maybe, they did infringe..."
(I did remove the 'hilarity' comment - it sincerely wasn't intended as insulting. But I did feel that the contortions that some people are doing in order to say "Well, I know they were found guilty, but woah, let's not be hasty, we don't reallllly know they are!" amusing.)
You can count on online tech bros to jump in front of any criticism of billion-dollar companies. Masimo is a $4 b company dude. It can't exist without exploiting people so it's better it is destroyed.
No, you don't have to agree with it. But don't expect people to be all sympathetic when you're trying to downplay a guilty verdict for your favorite company and saying "we don't know, how could we know, if that's actually accurate". It just sounds overly defensive.
I feel this is exploitation. I believe not all "business" operates this way nor does it have to. The power-imbalance and difference in legal briefing of Apple vs Orange teams would be an ENORMOUS weakness for Orange.
"just business" to me, here, means monopoly power, since Apple has access to ALL the information that it wants - all the strategic negotiating insight that is available for a given (new) technology. Orange would not.
Orange would easily reasonably, predictably lose in this kind of discussion with Apple. Their innovation is captured by Apple with unequal compensation for Orange's shareholders. That is wrong, and not acceptable for a healthy economy in my view.
Until/unless people start writing their own operating systems, developing their own hardware again and educating Congress to force interoperability AND SECURITY standards, this will definitely remain a Thing.
[ There is a pervasive feeling, dating back to the late 1970s, that engineers are not business people/risk takers and have therefore volunteered for a safer, but financially asymmetrical, symbiotic relationship with the platform OEM (and are history if they "get in the way" --much like the plant watering person who pulls up out front in a van and maybe spills some water on the floor while servicing the geraniums in the boardroom). The conflict, of course, is that many engineers aspire to be business people/risk takers and rarely understand why the platform OEMs won't directly support their efforts. ]
these don't seem to be typical patent troll stuff. Here's Claim 1 of the '648 patent:
1. A user-worn device configured to non-invasively measure a physiological parameter of a user, the user-worn device comprising:
a first set of light emitting diodes (LEDs), the first set of LEDs comprising at least an LED configured to emit light at a first wavelength and an LED configured to emit light at a second wavelength;
a second set of LEDs spaced apart from the first set of LEDs, the second set of LEDs comprising at least an LED configured to emit light at the first wavelength and an LED configured to emit light at the second wavelength;
four photodiodes arranged on an interior surface of the user-worn device and configured to receive light after attenuation by tissue of the user;
a protrusion comprising:
a convex surface extending over the interior surface,
a plurality of openings in the convex surface extending through the protrusion and aligned with the four photodiodes, each opening defined by an opaque surface, and
a plurality of windows, each of the windows extending across a different one of the openings; and
one or more processors configured to receive one or more signals from at least one of the photodiodes and calculate a measurement of the physiological parameter of the user.
You undoubtedly know more about this than I do, but every element of the claim (loosely speaking, everything before a semicolon) has to be found in the prior art. And there has to be some reason why a person of ordinary skill in the art would have thought to combine them. It IS tedious, but your paragraphs would get absolutely no traction with the PTO.
The applicant has to disclose all the prior art he's aware of. This is often abused, but for a well-known technology area, it wouldn't do to say "I don't know of any." Indeed, at the end of this patent there are a whole bunch of references to other "oximetry" patents. If the patent somewhere points out why what they're doing isn't found in the prior art, I missed it.
"By looking at this David vs. Goliath story, we can learn a lot - about how a tech company becomes all-powerful in the modern age, and how it works to protect its position at all costs."
According to Wikipedia, Goliath was defeated by David.
109 comments
[ 3.2 ms ] story [ 183 ms ] thread> Apple first approached Masimo more than a decade ago, floating the idea of a partnership, and potentially an acquisition. Instead, he says, the tech giant began a campaign to hire away his top talent and to plunder his company’s intellectual property.
https://portal.unifiedpatents.com/patents/patent/US-10945648...
Not a typical pattern troll but an innovative one. Now they can pretty much go after any companies in this area! I feel they are after Apple just because Apple Watch succeeded.
But simply asserting that is not going to change the outcome any.
> I feel they are after Apple just because Apple Watch succeeded.
Exactly. Why would they sue an unsuccessful company with no money?
Since when is the Apple watch measureing glucose? It appears they are not fighting about something the was in the original scope of the patent but something that was added/emphasized later.
Difficult to pick sides here.
Massimo was/is the incumbent in their medical space and they are now, to some extend, being disrupted by a consumer-market focused company. Of course they need to defend their territory. On the other hand, this is also not the first instance where Apple is accused of predatory behavior towards potential suppliers.
the patent says, "various blood constituents or analytes"
oxygen is a constituent, oxygenation is an analyte, just as an example
the word you're quoting, "glucose" appears after the term "such as", which means "possibly including, and not limited to", so this isn't the gotcha you may think it is
https://patents.google.com/patent/US20060026535A1/en
(Spoiler: Apple's patent for touch UI years before iPhone came to market, and the illustration indicates more of a iPad-like device)
Many more similar, also years before the products came to market:
https://patents.google.com/?assignee=apple
> 1) A user interface method, comprising: detecting a touch; determining a user interface mode when a touch is detected; displaying one or more GUI elements based on the user interface mode; and enabling the functionality of the GUI element.
The idea is: if a "lab assistant" can determine the exact concentrations, temperatures, pressures, manufacturing steps, etc. then it is still an invention. In other words, it's ok if practicing it requires reasonable experimentation.
You might disagree with that, but that's what the law says.
https://www.uspto.gov/web/offices/pac/mpep/s2164.html
But yeah: accountability. The PTO makes money by granting them, and then makes more by hearing the challenges to them.
Edit: I forgot to mention that the PTO runs a profit, last I checked. The government takes it, so they don't get to use it for improvement.
https://www.latimes.com/business/technology/story/2023-10-05...
https://www.reuters.com/legal/litigation/apple-lawsuit-says-...
Well you can't go around taking your employer's data with you.
Defendant contends that if "tangible" means "having physical form," then the statutory term "tangible reproduction" would involve a redundancy because all computer data is stored in some physical medium. We disagree. Someone with a photographic memory who memorized a piece of source code would not be making a tangible reproduction of the code (see generally Bottone, 365 F2d at 393 [referring to a hypothetical "case where a carefully guarded secret formula was memorized, carried away in the recesses of a thievish mind and placed in writing only after a boundary had been crossed"]). It is true that copying secret scientific material solely by memorizing it would not fall under the statute for a separate reason, i.e., that{*31 NY3d at 400} it would not be "writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material" (Penal Law § 165.07). Nevertheless, the word "tangible," as we interpret it, does not introduce redundancy; it adds a modest element to "reproduction," serving to emphasize that the crime consists in making a physical, not a mental, copy of secret scientific material.
(From: https://www.nycourts.gov/reporter/3dseries/2018/2018_03174.h...)
So anyway, you're not violating New York State law if you remember how your system works and you take it to your next employer. Contracts you sign and patent law still exist, however.
I know its outlandish, just food for thought.
If all they hired you to do is make a random database, and you do so in a really efficient manner, then you still own the right to use your skills to make a really efficient database for others. If they hire you to make a specific database, and you make it really efficient, then they probably own the rights to such a specific database, but you still retain the rights to make other kinds of databases in a really efficient manner. If they hire you to develop database to a certain degree of efficiency, then they might own the techniques you used to make it efficient, but this should be blatantly spelled out in your employment contract, and you should have been appropriately compensated for the inability to use this particular skillset in the future.
It's not a perfect analogy, but I like to think of it in terms of patterns vs algorithms.
But note infringing on a patent is different than being an expert.
World of difference between bringing your experience to a new job versus pages of CPU schematics.
This doesn't seem to be the sort of thing that can be measured with a margin of error.
If an acquisition fell through, it shouldn't be surprising that employees who were dissatisfied with that outcome wouldn't jump ship.
Maybe, but that's kinda the point of this lawsuit. As Apple implemented it, they did violate portions of the patent. Not every part of their claim was considered a violation, but some of it certainly was:
> As a result, the Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent.
https://www.usitc.gov/system/files?file=secretary/fed_reg_no...
If that was their plan, and they weren’t stupid, that will be extremely hard to prove.
Reason: if their plan was “we want to have this tech” and started talks in good faith that led nowhere, the same easily could have happened.
It’s a standard negotiation tactic to let ‘them’ know/think that you have alternatives, so during negotiations, Apple may have hinted that they would do it themselves if negotiations broke down, with the side effect of informing personnel of Masimo that opportunities might become available if negotiations broke down.
If, after negotiations broke down, Apple really decided “let’s do it ourselves” and put up job descriptions, I don’t think they’d have to explicitly call Masimo personnel to apply for those jobs, as they’ll know there are good career opportunities there.
> It could also be concerning if large companies can smother smaller competitors in the cradle.
I think that’s unavoidable. If SmallCo has a feature in their product that BigCo doesn’t have, commenters will deride them for it. If they add it in basic form, commenters will also deride them for it, and if they add it in superior form, commenters will also deride them for it, calling it Sherlocking.
The only way to prevent that would be to pay SmallCo for permission to clone the feature. If SmallCo, knowing that, sets an unrealistic price, what can BigCo do, other than ending negotiations and building the feature themselves? If they don’t build it at, commenters will deride them for it, so that’s not an option.
I am also confused why Apple would go to these sort of lengths for recruitment.
The company has acquired dozens of similar sized companies in the past so it is likely that the deal simply fell through.
Unless I'm misunderstanding the article, it seems like several trials have been conducted over this with Masimo being the winner multiple times.
Doesn't sound all that "unproven", thus far anyway.
In other words, the fact that it is normal for them to behave differently is at least as damning is it is exculpating.
It literally just has to create job openings and have its recruiters reach out the employees with attractive offers.
And there's nothing dishonest about that whatsoever. As I mentioned in another comment, Masimo had revenue of $1.24 billion last year. They're not a tiny mom and pop company. It's their job to pay their talent enough, and treat them well enough, so that they stay. If they fail to do so, then that's on them.
(And of course, companies undervalue their employees all the time. It's why the best way to progress in your career is often to be constantly switching companies, because another company will pay you what you're worth when your present company refuses.)
Apple should know better than to use its weight to tear the flesh off of small players in new markets. This isn't innovation - this is pouring unrelated economic gains from one economy into a completely different market segment. It's wholly and utterly unfair.
A watch company should not be a movie studio.
A movie studio should not be a grocery store.
A search engine paying for 100% placement should not also be a music platform, movie platform, thermostat vendor, cloud vendor, ...
This is all levels of fucked.
The government needs to break these obese mafia companies apart. It'll be better for competition and the consumer.
Fair competition would help more rewards flow directly to innovators. Instead, these Megatech companies staffed with their reams of PMs grow like a blob [1, 2] into anything that pops up on their radar.
[1] actually a great analogy for these companies; https://en.wikipedia.org/wiki/The_Blob
[2] https://en.wikipedia.org/wiki/The_Blob_(1988_film)
...but that's where the profits are. Apple, like Walmart and big-hair rock bands back in the day, thrive by throwing its weight around and taking advantage of small-time suppliers (or groupies) who'd do anything to get a shot at the bug leagues - including shouldering disproportionate risks for an illusory union used to string them along.
> A movie studio should not be a grocery store.
> A search engine paying for 100% placement should not also be a music platform, movie platform, thermostat vendor, cloud vendor, ...
Then what's the lawful distance between goods and services that company should be able to offer?
I get the position that big is bad, and I don't entirely disagree with that, but selling watches offers no unfair benefit to apple in the movie studio business, and vice versa. It's not like they're tying one good to another, or leveraging market power in one to gain market power in the other.
So if we want to say that you can't run a company that makes consumer electronic devices and a movie studio (see also, Sony, Amazon), then what's the limit?
Should a company that makes motorcycles be allowed to sell, say, fine stringed instruments (Yamaha)?
What about a company that makes industrial adhesives? Should they be allowed to also sell office supplies (3M)?
That's absolutely what's happening!
> So if we want to say that you can't run a company that makes consumer electronic devices and a movie studio (see also, Sony, Amazon), then what's the limit?
There are a lot of possible litmus tests for this.
Is the company using the new market to put eyeballs on its existing product offering, making itself stronger at the expense of players in the new market (Amazon Prime Movies, Apple TV)?
Is the company undercutting the costs of existing incumbents by offering products and services below cost (Apple TV)?
Is the company hiring away talent from the other market or building exclusive partnerships (Apple Automotive)?
Do consumer choices get made due to benefits of bundling with an unrelated market segment (Amazon Prime)?
Does it help the company streamline delivery of their platform into the new market and collect taxes or information in a new way (Apple and Google Pay)?
If it were just as you said, not a big deal. Happens all the time. But it wasn't, they were sneaky and disingenuous. Bad behavior deserves criticism. If I invited someone to dinner just to figure out if I should persue their wife, their wife has autonomy and what happens after is between the three parties. But the dinner was a sham, and you would be right to feel betrayed. Perhaps not a perfect analogy.
> The company may have a point about their IP being looted ...
> Would they not be allowed to use their expertise to develop a like system without violating the existing patent?
I mean, come on. Taking the IP and the employees ...
However the basis of the suit was fraudulent representation: Apple lost on the basis that they were found to be pretending to buy the company or license the tech. Have no idea if this is Apple's typical M.O. though I doubt it solely on the fact that these suits are rarely brought and they would be a juicy target.
I saw Google do this to a company I was loosely connected to. Because they were in acquisition discussions I was more closely involved than normal (but not in any inter-party meetings). My interpretation of events was incompetence on Big G's acquisition team rather than actual malice. It was a big deal for the startup but rather small for G and it didn't look like they had sent the A team over to do the deal.
I have no idea what really happened with Massimo/Apple beyond a few reports in the press.
IMO they’re essential, but the state we end up in feels inevitable. I’m quite a pessimist as a result.
I once went to a bar in Portland that had a ~20% discount if you showed them your union card when asked. If you said you didn't have a union, they'd respond: "no, you don't have a union... yet!" with a big grin on their face. Well intentioned, I'm sure. But overhearing the sheer volume of bike shedding that went on in conversations there regarding matters entirely adjacent to the folks' actual work, I can't say I want any part of it.
Indeed. In the sense that countries that don’t have enough of them descend into an economy of competing warlords.
This may very well be true, but at least in my union our employer tells individual represented employees that they can't do X for the employee because of the union, without ever informing the union of the matter (which would have immediately given our okay to the matter), and despite there being no real block to X in our contract language anyway.
It's a union-busting tactic.
In this case, Apple didn't want to buy an entire company just to get an algorithm. So, they found the person that came up with the algorithm and offered them more money to come up with a similar algorithm. Not illegal.
Apple has had this happen to them. They had Safari engineers hired away by Google to work on Chrome. They blocked this using back channels and got sued:
https://appleinsider.com/articles/14/03/24/steve-jobs-threat...
Basically, Apple wanted to under-compensate software engineers. This is bad for our field in general. It's important that ICs comply with any contracts and applicable law as they are poached, but backroom declarations of "war" or "you can't hire any of my employees unless you buy the entire company" is total horseshit that keeps software engineering compensation low.
This is capitalism -- it's your job to protect your company's information and trade secrets, and to pay your employees enough and treat them well enough so they don't go to a competitor. Everyone knows a potential acquisition might fall through or not be genuine in the first place, and that any potential acquirer can turn into a potential competitor in an instant. That's just business 101.
And it's not like Masimo is some mom and pop business that can't compete with Apple's salaries on 20 key employees. It had revenue of $1.24 billion last year, so come on.
All of this clearly hinges on whether Masimo had Apple actually stole trade secrets (presumably violating an explicit NDA or similar that Apple reps had signed), and whether Apple infringed on patents. The result on stolen trade secrets was a hung jury, and we'll wait for the final answer on patent infringement after presumably a sequence of appeals.
But the idea that Apple was "looting" was not confirmed by a jury, and "hiring away" treats these employees like property, which they are not. They are perfectly free to go work for Apple, and they should if Apple gives them a better deal.
Hell, even though they were found guilty of patent infringement, you're still, "It's not been shown that they actually did... we have to wait for the appeals!"
Everybody knows that major patent trials often get reversed on appeal, and sometimes reversed yet again. Precisely because they're not clear-cut, because clear-cut cases often just get settled before going to court at all.
And yes, the jury trial already couldn't decide against Apple in terms of trade secrets.
So the idea that Apple is obviously the bad guys here simply doesn't hold water. And they certainly aren't in terms of hiring employees from a competitor, because that's just what corporations do to do each other.
Maybe this jury decided correctly on patent infringment, maybe they didn't. Patent infringement cases can be notoriously difficult to determine. If this one gets upheld after a couple of appeals, then it's a lot easier to say Apple was in the wrong.
And, like it or not, it is common and accepted to note that there was conviction/guilt upon that verdict. When someone is convicted of a crime (I'm not saying this is) the common phrasing is "they were convicted of a crime" not "maybe, we'll have to see, maybe they decided correctly, maybe they didn't, let's wait for all the appeals first". So I'm unsure why there's this caveat for Apple.
Yes, patent claims are difficult, and there's a few areas where it is even more ripe for reform.
But even then, the phrasing would still be "found to infringe on patent, overturned on appeal" - because the fact that at some point there was significant enough impetus to believe it happened is notable.
You make a big deal about Masimo "not being a mom and pop company - they have $1.24B in revenue", but that ignores the fact that Apple is there with $393B. I could equally say "Well, if Apple, with the legal resources it could afford, couldn't convince a jury that they didn't infringe two supposedly simple patents, then maybe, just maybe, they did infringe..."
(I did remove the 'hilarity' comment - it sincerely wasn't intended as insulting. But I did feel that the contortions that some people are doing in order to say "Well, I know they were found guilty, but woah, let's not be hasty, we don't reallllly know they are!" amusing.)
I feel this is exploitation. I believe not all "business" operates this way nor does it have to. The power-imbalance and difference in legal briefing of Apple vs Orange teams would be an ENORMOUS weakness for Orange.
"just business" to me, here, means monopoly power, since Apple has access to ALL the information that it wants - all the strategic negotiating insight that is available for a given (new) technology. Orange would not.
Orange would easily reasonably, predictably lose in this kind of discussion with Apple. Their innovation is captured by Apple with unequal compensation for Orange's shareholders. That is wrong, and not acceptable for a healthy economy in my view.
[ There is a pervasive feeling, dating back to the late 1970s, that engineers are not business people/risk takers and have therefore volunteered for a safer, but financially asymmetrical, symbiotic relationship with the platform OEM (and are history if they "get in the way" --much like the plant watering person who pulls up out front in a van and maybe spills some water on the floor while servicing the geraniums in the boardroom). The conflict, of course, is that many engineers aspire to be business people/risk takers and rarely understand why the platform OEMs won't directly support their efforts. ]
https://www.youtube.com/watch?v=C9XyXLiTpI4
The history of Pulse Oximeters https://www.cablesandsensors.com/pages/history-of-pulse-oxim...
https://patents.google.com/patent/US10912502B2/en?oq=us10%2c...
https://patents.google.com/patent/US10945648B2/en?oq=us10%2c...
these don't seem to be typical patent troll stuff. Here's Claim 1 of the '648 patent:
1. A user-worn device configured to non-invasively measure a physiological parameter of a user, the user-worn device comprising:
a first set of light emitting diodes (LEDs), the first set of LEDs comprising at least an LED configured to emit light at a first wavelength and an LED configured to emit light at a second wavelength;
a second set of LEDs spaced apart from the first set of LEDs, the second set of LEDs comprising at least an LED configured to emit light at the first wavelength and an LED configured to emit light at the second wavelength;
four photodiodes arranged on an interior surface of the user-worn device and configured to receive light after attenuation by tissue of the user;
a protrusion comprising:
a convex surface extending over the interior surface,
a plurality of openings in the convex surface extending through the protrusion and aligned with the four photodiodes, each opening defined by an opaque surface, and
a plurality of windows, each of the windows extending across a different one of the openings; and
one or more processors configured to receive one or more signals from at least one of the photodiodes and calculate a measurement of the physiological parameter of the user.
Edit: after more looking, it appears the date you have to beat is 2006-04-21. I think that's their priority date.
It's entirely possible that "everyone" did know it before then. However, the patent system runs (mostly) on printed stuff that proves it.
https://en.wikipedia.org/wiki/Pulse_oximetry
The applicant has to disclose all the prior art he's aware of. This is often abused, but for a well-known technology area, it wouldn't do to say "I don't know of any." Indeed, at the end of this patent there are a whole bunch of references to other "oximetry" patents. If the patent somewhere points out why what they're doing isn't found in the prior art, I missed it.
https://www.youtube.com/watch?v=JlwwVuSUUfc
Election year coming up, what do you think is going to happen? (oh and before you accuse me of being a troll, this is how it works on both sides)
I'm surprised none of the actual patents in question were mentioned?
According to Wikipedia, Goliath was defeated by David.
Companies the size of Apple get away with any and everything.