By John Presper
On May 20, 2021, the ITC issued a Notice of Investigation in Certain Wearable Electronic Devices With ECG Functionality and Components Thereof (Inv. No. 337-TA-1266).

By way of background, this investigation is based on an April 20, 2021 complaint (see Part I, Part II, Part III, Part IV) filed by AliveCor, Inc. of Mountain View, California (“AliveCor”) alleging a violation of section 337 by Apple, Inc. of Cupertino, California (“Apple”) in the unlawful importation and/or sale in the U.S. of certain wearable electronic devices with electrocardiogram (ECG) functionality and components thereof by reason of infringement of one or more claims of U.S. Patent No. 10,595,731 (“the ’731 patent”); U.S. Patent No. 10,638,941 (“the ’941 patent”); and U.S. Patent No. 9,572,499 (“the ’499 patent”).

According to the complaint, the asserted patents are all directed to means and methods of using specialized sensors in a wearable device to improve upon existing cardiac monitoring technology. AliveCor is requesting that the Commission issue a permanent limited exclusion order and a permanent cease and desist order directed to Apple. According to the Notice of Investigation, the Office of Unfair Import Investigations will participate as a party in the investigation. Lastly, Chief ALJ Charles E. Bullock issued a notice indicating that ALJ Cameron R. Elliot will preside in the investigation.

In addition, the Commission issued an order denying Apple's request that this investigation be placed in the ITC's new Early Disposition Program to determine whether AliveCor satisfies the domestic industry requirement.  According to the order, Apple argued that AliveCor's KardiaBand and SmartRhythm domestic industry prodcts have been withdrawn from the market and therefore cannot from the basis of a domestic industry, and that AliveCor's allegations that a domestic industry is in the process of being established are not supported by the complaint.  The Commission denied Apple's request because the domestic industry issues in question "may be too unwieldy to be decided within 100 days of institution."