AliveCor v. Apple latest: Federal court tosses AliveCor suit on heart rate app data monopolization

Apple wins one, but the other and more important AliveCor antitrust/IP cases go on. Judge Jeffrey White of the US District Court for the Northern District of California dismissed one of the many lawsuits between AliveCor and Apple. This one goes back a few years when AliveCor provided a cardiac app to the Apple Watch. The claim is that Apple’s 2018 changes in algorithms reading heart rates in the watchOS5, upgrading from the “Heart Rate Path Optimizer” algorithm (HRPO) to the “Heart Rate Neural Network” algorithm (HRNN), hurt a third-party app provider like AliveCor with their SmartRhythm app designed for the HRPO. The AliveCor argument in the 2021 lawsuit was that Apple should have made the earlier algorithms available, and that Apple violated California’s Unfair Competition Law. Apple’s argument was that the HRNN was more accurate, this was a genuine improvement that provided better data, and that third parties had no right to interfere in Apple’s design and business decisions. Since it was a summary decision, we do not know the details of Judge White’s reasoning. 

AliveCor’s full statement, provided by AliveCor, is:

AliveCor is deeply disappointed and strongly disagrees with the court’s decision to dismiss our anti-competition case and we plan to appeal. We will continue to vigorously protect our intellectual property to benefit our consumers and promote innovation. The dismissal decision does not impact AliveCor’s ongoing business; we will continue to design and provide the best portable ECG products and services to our customers.

Separately, the ITC’s findings that Apple has infringed AliveCor’s patents still stand. Both the ITC and U.S. Patent Trial and Appeal Board (PTAB) appeals will be reviewed at the United States Court of Appeals for the Federal Circuit in the coming months. In other recent developments, the PTAB recently ruled in AliveCor’s favor by instituting Inter Partes Review (IPR) of Apple’s patents and a stay of Apple’s countersuit.

We welcome any comments provided by Apple. Both AliveCor’s and Masimo’s suits go on in various courts.

Reuters, 9to5 Mac   Most recent AliveCor v. Apple coverage: spoilation split decision, ITC final determination

Jawbone finally T-bones, founder starts Jawbone Health Hub (updated)

[grow_thumb image=”” thumb_width=”200″ /]Confirming the decline of the fitness tracker/wearables business, Jawbone is finally over and done. Their liquidation this week was initially reported by The Information (subscription only) and that co-founder/CEO Hosain Rahman has started a new company, Jawbone Health Hub. JHH will work on medical software and hardware, as well as eventually servicing the buggy existing Jawbone products† which were sold off to a third party last September. JHH is also reportedly hiring many former Jawbone staff and on job boards such as Glassdoor. 

Jawbone’s demise comes after a troubled 18 months, starting with a $165 million private equity raise in January 2016 led by the Kuwait Investment Authority, rumors of financial problems, repositioning into clinical medical monitoring, and abandoning what was left of consumer market support. There is also the continuing saga of court actions with Fitbit over trade secrets, employee poachings, and IP–all additional reasons for the founder to walk away. The only value left in Jawbone is that IP which includes BodyMedia patents and anything left that wasn’t voided by a court. Fitbit shares are also sinking, currently trading at a near 52-week low of just above $5.

‘Death by overfunding’? Updated During its lifetime from wireless audio speaker innovator Aliphcom to wearables leader with the Jawbone UP, Jawbone raised $938 million (Crunchbase), and at one point was valued at $3 billion. An interesting take from a Reuters article was that one consensus among Silicon Valley tech funders was that the company would have been far easier to acquire had it raised less money. Jawbone ranks only behind solar tech Solyndra among largest failures among venture-backed companies. (The difference, of course, was that Jawbone didn’t take $500 million of public stimulus money, as Solyndra did before it failed.)

The words ‘Chapter 7’ have not been included in reports but Sherwood Partners, a busy Mountain View CA financial restructuring company that has wound down plenty of startups through unicorns, was reported to be in charge of the liquidation process plus any remaining legal actions with Fitbit. None of the usual sources have been able to obtain statements from Mr. Rahman and ‘the information’ remains limited. The Verge, TechCrunch, Business Insider 

†Editor Charles’ struggles with seven personal Jawbone UPs were often typical of the user experience.

Jawbone gets its day in California Superior Court versus Fitbit

It looks like the long-running Jawbone v. Fitbit trade secrets show will continue in California Superior Court. Judge Richard Ulmer on Friday (24 Mar) in San Francisco ruled that the scope of the Jawbone-initiated lawsuit, charging that Fitbit and five former Jawbone employees stole trade secrets, was far larger than the dismissal handed down last October by the US International Trade Commission (ITC) in Washington, DC, rejecting Fitbit’s claim. To Bloomberg Technology, a Jawbone spokesperson crowed, “We look forward now to focusing on presenting our case to a California jury, which will not be bound by the strict procedural limitations that we faced in the ITC. We will push the case to trial as quickly as possible and are confident that justice will be done.” Fitbit is expected to appeal, but this is not good news for them if this drags out–their share price is down 72 percent from a year ago (Marketwatch)–and threatens their IP which is key to a pivot to the clinical monitoring market.

A sidebar to this is Business Insider’s recent report that one of Jawbone’s law firms, Susman Godfrey LLP, has withdrawn from three pending cases citing ‘professional considerations’, remaining on two. This Editor cannot confirm whether Susman Godfrey is representing Jawbone in the above case, as Plainsite records indicate that Skadden Arps is their counsel. The California courts website has not been updated for the case (Aliphcom Inc. v. Fitbit Inc., CGC15-546004). Previous TTA coverage 9 Feb.

Accenture projects that 50 percent of digital health startups fail after two years

[grow_thumb image=”” thumb_width=”175″ /]Based on historical funding data and analyzing 900 healthcare IT start-ups, Accenture predicts that within two years of life, 50 percent will fail. These ‘zombie startups’, in Accenture’s charming term, burned through $4 bn in funding between 2008 and 2013. An additional $2.5 bn will go to fund digital health in 2015-16.

Does this mean that for the angels to the VCs, a visit to Las Vegas may be more fun? What remains can be mined for gold. There’s a wealth of IP–1,700 patents between the 900 startups analyzed–and experienced people who can be “aqui-hired”. Their solutions, despite failure, can be sound. Kaveh Safavi, managing director of Accenture’s global health care business, said, “Many digital startups that are dying or in danger of failure have developed solutions that can help traditional and non-traditional health care companies achieve their goals.” Mobihealthnews, iHealthBeat, FierceHealthIT. Accenture announcement.

Due diligence: the importance of the internal IP audit

This is the fourth article of an occasional series on law and intellectual property (IP) as it affects software and systems used in health technology. The topic is the importance on implementing your own audit of your company’s IP and why you should enlist an outside company to do it. More than a list of your copyrights and patents, an independently conducted internal audit will prepare your company for the external due diligence expected when a bank wants to vet a loan or an investor knocks on the door–and it includes things like your website and IT. While Mr. Grossman is writing in the context of US law, our UK and international readers will find his pointers applicable both locally and in dealing with the US. What’s refreshing is his plain writing and lack of ‘legalese’. 

Mark Grossman, JD, has nearly 30 years’ experience in business law and began focusing his practice on technology over 20 years ago. He is an attorney with Tannenbaum Helpern Syracuse & Hirschtritt in New York City and has for ten years been listed in Best Lawyers in America. Mr. Grossman has been Special Counsel for the X-Prize Foundation and SME (subject matter expert) for Florida’s Internet Task Force. More information on Mr. Grossman here and at his blog.


Intellectual property may be among the most valuable assets your company owns. The problem with intellectual property (IP) is that by its nature its intangible. You can’t touch it or see it. So how do you know what you have and own?

The starting point is to look to any registrations you may have with the government. For example, you may have registered a copyright or trademark and have paperwork to prove it. However, the registrations are just the starting point. It turns out that getting a handle on your company’s IP assets can be a complex process.  (more…)

Telehealth & IP Soapbox: Hacking through Patent Thickets

Not only do company founders have to deal with patent trolls, but find their way through patent thickets. Patent thickets are overlapping patent rights through which developers must find a safe, defensible space for their technology. This article introduces this concept to our readers and outlines a strategy to deal with it–in early days, and not sticking one’s head in the sand as this Editor has encountered. What may surprise you in reading this excellent article is that the author, Dolly J. Krishnaswamyis not an experienced litigator, but a law student at NYU while working as a Project Manager/Law Clerk, Goldstein Patent Law. She blends law, science, tech and journalism with her prior experience as a journalist for Science magazine, technology work in New York City and in the study of genetics while at Emory University. Enjoy the article.

Many of you are privy to the problem of excessive patents. You have all seen the articles about yet another cellphone company infringing on yet another patent, but what you’re left with are questions of what all this activity means and how to use that information to act in your best interest– whether you are the CEO of a company or the general counsel for one. At the 2013 ABA Annual Meeting held in San Francisco, legal experts tackled this problem, discussing the trends in patent litigation and some potential strategies for companies preparing to introduce products into heavily-patented market segments.

Generally speaking the use of patents can vary with some people using them for insurance and others using them strategically. From a business standpoint, how a company uses a patent depends on the industry that company is in. For example, in the medical technologies space, all the companies will have patents on their core technologies and be highly cognizant of the patents they have to deal with. With the record number of high patent filings, the continued state of high damages, and the fact that even smaller companies are beginning to see patent infringement lawsuits, it’s clear that patent strategy is a complex matter– further complicated by the presence of patent thickets. (more…)

Telehealth Soapbox: Negotiating a Vendor’s Limitation of Liability Clause

This is the third of an occasional series on US law and intellectual property (IP) as it affects software and systems used in health technology. This article is a ‘how to’ on achieving a more equitable liability arrangement between a company and a vendor. A standard clause a vendor uses to protect their company from liability can cause a great deal of trouble and financial heartache for a contracting company when ‘things go sideways’. Correspondingly, if you are a vendor or partner, this enables you to anticipate issues a skilled negotiator on the other side of the table will present.

Mark Grossman, JD, has nearly 30 years’ experience in business law and began focusing his practice on technology over 20 years ago. He is an attorney with Tannenbaum Helpern Syracuse & Hirschtritt in New York City and has for ten years been listed in Best Lawyers in America. Mr. Grossman has been Special Counsel for the X-Prize Foundation and SME (subject matter expert) for Florida’s Internet Task Force. More information on Mr. Grossman here.

When clients come to me to consider suing because of a tech deal that has gone bad, the single worst lawsuit killer is often the “standard” limitation of liability clause found in a vendor’s form agreement. It never ceases to amaze me how people don’t pay attention to these clauses as they blithely sign-off on a one-sided agreement. It’s just one little clause and yet it can cause so much damage.

Here’s an example of the type of provision that you’ll see in tech agreements:

“The liability of vendor to customer for any reason and upon any cause of action related to the performance of the work under this agreement whether in tort or in contract or otherwise shall be limited to the amount paid by the customer to the vendor pursuant to this agreement.”

Yes it’s heavily slanted in favor of the vendor—it’s the vendor’s form. I draft them just as one sided when I’m representing a vendor so that I protect MY client. As I always say, he who drafts sets the agenda. (more…)

MMRGlobal IP infringement lawsuits, allegations continue

Personal Health Record (PHR) patent holder and penny-stock company MMRGlobal [TA 10 Feb] continues to keep law firms in the US, Australia and now Singapore very busy with various complaints of patent infringement, demanding monetary damages, a permanent injunction and presumably, a lucrative licensing deal. Last week, MMRG filed in US District Court, Central District of California against health giant WebMD for their online PHR, claiming that from meetings dating back to 2007, WebMD incorporated “features and functionality that are the subject of MMR’s patents”. Today’s MMRG press release now highlights the Singapore Ministry of Health (with associated health agencies)which MMRG alleges uses PHR vendors which violate various patents–which just happen to be owned by MMRG in Singapore.  (more…)