PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`
`In the Matter of
`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
`
`
`
`Investigation No. 337-TA-1276
`
`COMMISSION OPINION DENYING RESPONDENT’S MOTION TO STAY THE
`REMEDIAL ORDERS
`
`Table of Contents
`
`BACKGROUND .................................................................................................... 2
`LEGAL STANDARD ............................................................................................. 4
`APPLE’S MOTION AND ANALYSIS THEREOF .............................................. 5
`A.
`The Standard Havens Factors ..................................................................... 5
`
`Admittedly Difficult Legal Questions ............................................ 5
`
`Whether Apple Will Be Irreparably Injured Absent a Stay .......... 10
`
`Whether a Stay Will Substantially Injure Other Parties Interested
`in the Proceeding........................................................................... 11
`Where the Public Interest Lies ...................................................... 12
`
`Balancing the Standard Havens Factors ....................................... 13
`
`Potential Government Shutdown .............................................................. 14
`B.
`CONCLUSION ..................................................................................................... 14
`
`
`I.
`II.
`III.
`
`IV.
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`
`
`
`
`
`1
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`

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`PUBLIC VERSION
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`I.
`
`INTRODUCTION
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`On October 26, 2023, the Commission issued its final determination in this investigation,
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`finding Apple Inc. of Cupertino, California (“Apple”), the sole respondent, in violation of section
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`337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, as to certain claims of U.S. Patent
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`No. 10,912,502 (“the ’502 patent”) and U.S. Patent No. 10,945,648 (“the ’648 patent”). 88 Fed.
`
`Reg. 75032, 75032–33 (Nov. 1, 2023). The Commission issued: (1) a limited exclusion order
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`(“LEO”) prohibiting the importation of light-based physiological measurement devices and
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`components thereof that infringe one or more of those claims; and (2) a cease and desist order
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`(“CDO”) directed to Apple. Id. Thereafter, Apple filed a motion to stay the LEO and CDO
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`pending appeal and/or in light of a potential government shutdown. Masimo Corporation
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`(“Masimo”) and Cercacor Laboratories, Inc. (collectively, “Complainants”) filed an opposition
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`to this motion. For the reasons discussed herein, Apple’s motion is denied.
`
`II.
`
`BACKGROUND
`
`The Commission instituted this investigation on August 18, 2021, based on a complaint
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`filed by Complainants on June 30, 2021, with an amended complaint filed on July 12, 2021, and
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`supplemented on July 19, 2021. 86 Fed. Reg. 46275 (Aug. 18, 2021). The amended complaint
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`alleged violations of section 337 based upon the importation into the United States, the sale for
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`importation, and the sale within the United States after importation of certain light-based
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`physiological measurement devices and components thereof by reason of infringement of certain
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`claims of the ’502 and ’648 patents as well as U.S. Patent No. 10,912,501 (“the ’501 patent”);
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`U.S. Patent No. 10,687,745 (“the ’745 patent”), and U.S. Patent No. 7,761,127 (“the ’127
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`patent”). Id. The notice of investigation named Apple as the sole respondent. Id. at 46276. The
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`Office of Unfair Import Investigations did not participate in this investigation. Id.
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`2
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`

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`PUBLIC VERSION
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`Before the presiding administrative law judge (“ALJ”) issued the final initial
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`determination (“Final ID”), Complainants withdrew certain asserted patent claims from the
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`investigation. See Order No. 25 (Mar. 23, 2022), unreviewed by Comm’n Notice (Apr. 12,
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`2022); Order No. 33 (May 20, 2022), unreviewed by Comm’n Notice (June 10, 2022). At the
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`time of the Final ID, only claim 12 of the ’501 patent; claims 22 and 28 of the ’502 patent;
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`claims 12, 24, and 30 of the ’648 patent; claims 9, 18, and 27 of the ’745 patent; and claim 9 of
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`the ’127 patent remained in the investigation.
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`On October 26, 2023, the Commission found that Apple violated section 337 as to claims
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`22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent and issued an LEO and
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`CDO. 88 Fed. Reg. 75032, 75032–33 (Nov. 1, 2023). The Commission determined that the
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`public interest factors did not preclude issuance of the remedial orders. See id.; 19 U.S.C.
`
`§ 1337(j)(3).
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`On October 30, 2023, Apple filed the pending motion to stay the remedial orders pending
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`appeal and/or in light of a potential government shutdown. See Respondent Apple Inc.’s Motion
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`to Stay Exclusion and Cease and Desist Orders Pending Appeal and/or in Light of the Potential
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`Government Shutdown, EDIS Doc. ID 807326 (Oct. 30, 2023) (“Motion” or “Mtn.”). On
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`November 9, 2023, Complainants filed an opposition to Apple’s motion. See Complainants’
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`Opposition to Respondent Apple Inc.’s Motion to Stay Exclusion and Cease and Desist Orders
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`Pending Appeal and/or in Light of the Potential Government Shutdown, EDIS Doc. ID 808262
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`(Nov. 9, 2023) (“Oppn.”).1
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`
`
`1 On November 20, 2023, Complainants filed Complainants’ Request for Judicial Notice
`of Recent Regulatory Developments for Masimo W1 Watch. EDIS Doc. ID 808970 (Nov. 20,
`2023). Complainants asked the Commission to consider, in making its determination on Apple’s
`Motion, a decision of the United States Food and Drug Administration related to Masimo’s W1
`3
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`PUBLIC VERSION
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`III. LEGAL STANDARD
`
`The Administrative Procedure Act provides an agency with the authority to “postpone the
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`effective date of action taken by it, pending judicial review” if the “agency finds that justice so
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`requires.” 5 U.S.C. § 705. The Federal Circuit has set forth the following four-part test to assess
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`whether to stay a lower court’s remedy pending appeal:
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`(1) whether the stay applicant has made a strong showing that he is likely
`to succeed on the merits; (2) whether the applicant will be irreparably
`injured absent a stay; (3) whether the issuance of the stay will substantially
`injure the other parties interested in the proceeding; and (4) where the
`public interest lies.
`
`Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990)
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`(quotation omitted). The factors are subject to weighing, and each factor need not be given equal
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`weight. See id. at 512–13.
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`The Commission evaluates motions for stay pending appeal under the Standard Havens
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`test, with one exception. The Commission has recognized the futility of establishing a
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`likelihood-of-success for a movant given that it is difficult to ask an agency to find its own
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`decision is likely to be overturned on appeal. See Certain Agric. Tractors Under 50 Power Take-
`
`Off Horsepower, Inv. No. 337-TA-380, Comm’n Op. Denying Respondents’ Petition for
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`Reconsideration and Motion for Relief Pending Appeal at 10 (Apr. 24, 1997) (“Agric. Tractors”)
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`(denying respondents’ motion to stay a general exclusion order and cease and desist orders and
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`discussing Wash. Metro. Area Transit Comm. v. Holiday Tours, Inc., 559 F.2d 841, 844–45
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`(D.C. Cir. 1977)). Thus, in lieu of the Standard Havens “likely to succeed on the merits” factor,
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`
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`Watch product and documents associated with that decision. See id. at 1–2. However, putting
`aside the applicability of judicial notice for the documents in question, the Commission does not
`rely on these documents and consideration of them would not alter the Commission’s
`determination.
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`4
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`PUBLIC VERSION
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`the Commission considers whether it has “ruled on an admittedly difficult legal question.” See
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`Certain Tobacco Heating Articles & Components Thereof, Inv. No. 337-TA-1199, Comm’n Op.
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`Denying Respondents’ Motion to Stay Limited Exclusion Order and Cease and Desist Orders
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`Pending Appeal at 4 (Jan. 20, 2022) (“Tobacco Heating Articles”); see also Holiday Tours, 559
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`F.2d at 844–45 (“What is fairly contemplated is that tribunals may properly stay their own orders
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`when they have ruled on an admittedly difficult legal question and when the equities of the case
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`suggest that the status quo should be maintained.”). As the Commission stated in Tobacco
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`Heating Articles, it has “repeatedly recited and applied this ‘admittedly difficult question’ test in
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`previous investigations in which stays of its remedial orders were sought pending appeal.”
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`Comm’n Op. at 4 (footnote collecting investigations omitted).
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`IV. APPLE’S MOTION AND ANALYSIS THEREOF
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`A.
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`The Standard Havens Factors
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`
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`Admittedly Difficult Legal Questions
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`Apple presents three separately-alleged “admittedly difficult legal questions,” discussed
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`below, see Motion at 6–18; the Commission finds that none of these is admittedly difficult.
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`a.
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`Domestic Industry—Whether a Patent-Practicing Article Must
`Exist at the Time the Complaint is Filed
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`According to Apple, “[b]y affirming the ALJ’s conclusion that Complainants ‘have
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`shown the existence of a domestic industry,’ Comm’n Op. at 67, the Commission necessarily
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`held that Section 337’s requirement that an industry ‘relating to the articles protected by the
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`patent . . . exists’ . . . is satisfied even if the only article described in the complaint is a drawing
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`of an imaginary product.” Mtn. at 6–7 (footnote omitted). Apple asserts that “this ruling is
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`wrong in light of the Federal Circuit’s ruling in Microsoft Corp. v. ITC that ‘a company seeking
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`section 337 protection must . . . provide evidence’ that ‘relates to an actual article that practices
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`5
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`PUBLIC VERSION
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`the patent, regardless of whether or not that article is manufactured domestically or abroad.’” Id.
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`at 7 (quoting Microsoft Corp. v. Int’l Trade Comm’n, 731 F.3d 1354, 1361–62 (Fed. Cir. 2013))
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`(Apple’s emphasis). Apple further argues that, “[a]t the very least, this case presents the difficult
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`question [of] whether Complainants identified an ‘actual article’ within the meaning of the
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`statute.” Id.; see also id. at 7–12.
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`Apple has not shown that this is an “admittedly difficult legal question” at least because,
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`as Complainants point out, Apple is challenging a simple factual finding of the Commission (and
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`the Final ID). See Oppn. at 9–13. The Commission did not find that a domestic industry exists
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`based on a drawing of an imaginary product, as Apple alleges. Nor did the Commission base its
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`finding on a product that did not exist at the time the complaint was filed. Apple’s motion
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`ignores the evidentiary record and the Final ID’s and the Commission’s findings, which reflect
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`the existence of, as of the filing of the complaint, numerous Masimo Watch articles and
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`extensive related documentation, testimony, and investments. See, e.g., Final ID at 56–85; see
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`also Oppn. at 10–13.
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`b.
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`Prosecution Laches
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`Apple argues that “Complainants’ conduct in this case falls squarely within the doctrine
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`of prosecution laches, which bars them from receiving any relief on the asserted claims.” Mtn. at
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`12 (citing Personalized Media Commc’ns, LLC v. Apple Inc., 57 F.4th 1346, 1354 (Fed. Cir.
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`2023)). Apple points out that “[l]aches applies if ‘(1) the patentee’s delay in prosecution . . . [is]
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`unreasonable and inexcusable under the totality of the circumstances,’ and ‘(2) the accused
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`infringer . . . suffered prejudice attributable to the delay.’” Id. (quoting Personalized Media, 57
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`F.4th at 1354). For the first element, Apple argues that “Complainants delayed for twelve years
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`in filing the asserted claims—with no clear reason for doing so other than strategic
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`gamesmanship.” Id.; see also id. at 12–14. For the second element, Apple asserts that it suffered
`6
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`PUBLIC VERSION
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`significant prejudice because it “invested in, worked on, or used the claimed technology during
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`the period of delay.” Id. at 14 (quoting Personalized Media, 57 F.4th at 1357).
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`Apple has not shown an “admittedly difficult legal question” because Apple waived its
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`opportunity to challenge this issue by not properly presenting it in its petition for review of the
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`Final ID. See Oppn. at 13. With respect to the content of such a petition, the Commission’s
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`Rules require, in part, that “[t]he petition for review must set forth a concise statement of the
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`facts material to the consideration of the stated issues, and must present a concise argument
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`providing the reasons that review by the Commission is necessary or appropriate to resolve an
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`important issue of fact, law, or policy.” 19 C.F.R. § 210.43(b)(2). Furthermore, this subsection
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`specifies:
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`Id.
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`Petitions for review may not incorporate statements, issues, or arguments
`by reference. Any issue not raised in a petition for review will be deemed
`to have been abandoned by the petitioning party and may be disregarded
`by the Commission in reviewing the initial determination (unless the
`Commission chooses to review the issue on its own initiative under
`§ 210.44), and any argument not relied on in a petition for review will be
`deemed to have been abandoned and may be disregarded by the
`Commission.
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`Here, Apple improperly incorporated its argument by reference from its post-hearing
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`briefing, which is not sufficient to raise the issue before the Commission. See Respondent Apple
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`Inc.’s Petition for Review of the Initial Determination of Violation of Section 337, EDIS Doc. ID
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`788470, at 78–79, 99–100 (“RPet.”); 19 C.F.R. § 210.43(b)(2); Tobacco Heating Articles,
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`Comm’n Op. at 10 (denying a motion to stay remedial orders and finding that the argument
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`“raised now by Philip Morris comes far too late, and the Commission deems it abandoned”);
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`Hazani v. U.S. Int’l Trade Comm’n, 126 F.3d 1473, 1476–77 (Fed. Cir. 1997) (finding argument
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`waived when not timely presented to the ALJ); Finnigan Corp. v. Int’l Trade Comm’n, 180 F.3d
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`7
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`PUBLIC VERSION
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`1354, 1362–63 (Fed. Cir. 1999) (finding argument waived when not presented in petition for
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`review of an ALJ’s determination).
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`c.
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`Obviousness
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`Apple’s last argument relates to the Commission’s adoption of the Final ID’s rejection of
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`Apple’s Lumidigm-based obviousness defense. The Final ID found that “persons of ordinary
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`skill in the art would not have expected to successfully measure blood oxygen in a wristwatch at
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`the time of the Poeze patents,” and thus a person of ordinary skill in the art would not have
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`modified the wrist-watch embodiment of Lumidigm according to Apple’s theory to arrive at the
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`claimed inventions. See Final ID at 115–18 (including n. 44) (discussing the limiting preamble
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`of claim 22 of the ’502 patent).2
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`Apple asserts that, “[w]hen concluding that a patent claim is not invalid, it is
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`impermissible to require the prior art to enable more than is required by the claim itself.” Mtn. at
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`14; see also id. at 14–18. Apple argues that the Commission found that “the asserted claims of
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`the ’648 and the ’502 patent were not obvious because the prior art reference provided by Apple
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`(Lumidigm) does not enable taking an ‘oxygen saturation’ measurement ‘at the wrist.’” Id. at 17
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`(citing Final ID at 113–17). Apple then asserts that the Commission erred because “none of the
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`claims for which a violation was found recites or requires taking a measurement at the wrist.”
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`Id. According to Apple, if the device “described in the prior art could take a blood oxygen
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`measurement anywhere on the body, it would anticipate or render obvious the claimed subject
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`matter.” Id. at 18. Finally, Apple asserts that the Commission found that “Lumidigm does
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`
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`2 The Final ID’s reasoning likewise applied to the other asserted claims (except for claim
`12 of the ’501 patent), as Apple also alleged that those claims were obvious over combinations
`of references involving Lumidigm’s wrist-watch embodiment and those claims also recite
`measuring blood oxygen. See, e.g., Final ID at 128, 140, 142.
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`8
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`PUBLIC VERSION
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`describe taking blood oxygen measurements via a user-worn device,” so it must anticipate or
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`render obvious the claims at issue. Id. (emphasis omitted).
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`Apple has not shown an “admittedly difficult legal question” because Apple is
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`challenging a simple factual finding of the Commission. See Oppn. at 18–20. Moreover, Apple
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`misconstrues the Final ID, and Apple’s argument (also presented in its petition for review of the
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`Final ID) was already considered and rejected by the Commission. See RPet. at 15–20. Neither
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`the Final ID nor the Commission required Lumidigm to enable more than the asserted patent
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`claims. See Oppn. at 18–20. Rather, the Commission properly analyzed Lumidigm and other
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`evidence to determine if a person of ordinary skill in the art would have been motivated to
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`modify Lumidigm’s wristwatch to measure oxygen saturation to arrive at the alleged invalidating
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`device with a reasonable expectation of success. See, e.g., Final ID at 113–18; see also, e.g., id.
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`at 118 n.44 (“The evidence regarding the difficulty in achieving blood oxygen measurements at
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`the wrist, as discussed above, also shows the lack of clear and convincing evidence of a
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`reasonable expectation of success for the asserted obviousness arguments.”). While measuring
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`oxygen saturation at the wrist is not claimed, Apple chose to base its invalidity theory on
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`measuring blood oxygen saturation at the wrist being taught or suggested by Lumidigm to a
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`person of ordinary skill in the art at the time of the invention.
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`Here, the Commission properly found that Lumidigm, alone or combined with
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`knowledge in the art at the time of the invention, did not enable measuring oxygen saturation at
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`the wrist, and therefore a person of ordinary skill in the art would not have reasonably expected
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`success at arriving at the device serving as the basis of Apple’s obviousness theory. See, e.g.,
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`Final ID at 113–18, 124, 128, 132, 140, 142; Oppn. at 19; ActiveVideo Networks, Inc. v. Verizon
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`9
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`PUBLIC VERSION
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`Commc’ns, Inc., 694 F.3d 1312, 1327 (Fed. Cir. 2012); Raytheon Techs. Corp. v. GE Co., 993
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`F.3d 1374, 1380–81 (Fed. Cir. 2021).
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` Whether Apple Will Be Irreparably Injured Absent a Stay
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`Apple argues that it faces “unquantifiable harm if it is barred from importing its current
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`Apple Watch models into the United States during the pendency of its appeal,” specifically a loss
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`of “goodwill” and “significant damage to its reputation.” Mtn. at 18; see also id. at 18–19.
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`Apple additionally asserts that a “sudden dearth of Apple Watch products will inevitably harm
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`the public’s perception of Apple,” and “Apple will undoubtedly lose goodwill it has built over
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`the decades of providing high quality, innovative electronics in a timely manner, leading
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`potential customers not to purchase any watch at all.” Id. at 19. Apple further argues that
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`“allowing the Commission’s orders to go into effect will provide fodder to support
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`Complainants’ baseless assertions that Apple improperly copied Complainants’ technology—
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`fundamentally tarnishing Apple’s signature strong reputation as an innovator.” Id. (internal
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`quotations omitted).
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`The Commission finds that Apple has not shown that it will suffer irreparable harm such
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`that this Standard Havens factor supports a stay. As Complainants point out, Apple’s alleged
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`irreparable injuries are “pure attorney argument supported by no evidence,” Oppn. at 22, and are
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`thus unpersuasive. See, e.g., Tobacco Heating Articles, Comm’n Op. at 14 (“Philip Morris offers
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`vague and unsupported declarations with generalizations, such as alleged loss of goodwill . . .
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`without supporting calculations or substantiation of underlying assumptions. . . . Philip Morris’s
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`motion is therefore speculative and unsupported.”) (internal citation omitted); Certain Marine
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`Sonar Imaging Devices, Including Downscan & Sidescan Devices, Prods. Containing the Same,
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`& Components Thereof, Inv. No. 337-TA-921 (Modification), Comm’n Op. Denying Garmin
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`Respondents’ Emergency Motion for Stay Pending Appeal at 13 (Oct. 20, 2016) (“Garmin has
`10
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`PUBLIC VERSION
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`failed to cite to any evidence concerning the purported harms caused by issuance of the
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`[remedial order].”). Here, Apple presented no evidence supporting the nature or extent of any
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`alleged harm it faces from a denial of a stay of the remedial orders, which affect just a portion of
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`one product line3 in Apple’s large suite of product and service offerings. Additionally,
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`statements regarding Apple’s copying of Masimo’s technology and Apple’s pattern of “efficient
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`infringement” are already in the public record. See Oppn. at 22.
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` Whether a Stay Will Substantially Injure Other Parties Interested in
`the Proceeding
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`Apple asserts that “Complainants will not suffer cognizable harm if the Commission
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`stays its orders pending appeal.” Mtn. at 20. Apple points out that Complainants are suing it for
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`infringement of the same patents in district court and thus Complainants can obtain monetary
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`relief. Id. Apple further argues that Complainants are unlikely to suffer any harm from a stay
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`because Masimo’s W1 Watch is not selling “in the United States in any meaningful quantity.”
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`Id.; see also id. at 20–21. Apple adds that, even if the W1 Watch was selling “in material
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`quantities in the United States, Mr. Kiani4 has stated on a recent quarterly earnings call that
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`‘customers that we’re targeting are people who have chronic illnesses and need a serious . . .
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`measurement.’” Id. at 21 (citation omitted).
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`The Commission finds that Complainants would suffer some harm by granting the stay.
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`The Commission has explained that a complainant “will be irreparably injured by a stay that
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`denies its patents the full term to which they are entitled.” Certain Lens-Fitted Film Packages,
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`
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`3 The Apple Watch SE is not affected by the Commission’s remedy. See, e.g., Certain
`Light-Based Physiological Measurement Devices & Components Thereof, Inv. No. 337-TA-
`1276, Comm’n Op. at 94, 118 (Nov. 14, 2023).
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`4 Mr. Joe Kiani is Masimo’s chief executive officer.
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`PUBLIC VERSION
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`Inv. No. 337-TA-406, Comm’n Op. at 17 (June 28, 1999); Tobacco Heating Articles, Comm’n
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`Op. at 16; see also Agric. Tractors, Comm’n Op. at 16. That said, the Commission notes that
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`Complainants do not contest Apple’s assertion that Masimo is not selling its W1 Watch in the
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`United States in any meaningful quantity and also does not intend to widely market that product
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`in the United States, opting instead to market a different, not yet released product in the United
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`States. See Oppn. at 22–23; see also Mtn. at 20–21. Thus, Complainants would not appear to
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`miss out on substantial revenue in the event of a stay. The Commission further notes that
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`Complainants’ parallel pending district court proceeding provides a forum for Complainants to
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`attempt recovery of monetary damages for infringement. See Certain Dig. Models, Dig. Data, &
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`Treatment Plans for Use in Making Incremental Dental Appliances, Inv. No. 337-TA-833,
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`Comm’n Op. at 8 (June 11, 2014) (granting stay of remedial orders). While Congress has
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`provided for “Commission relief [to be] ‘in addition to’ relief provided by the district courts,” the
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`presence of a parallel pending district court proceeding, although not alone sufficient to support a
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`stay, has at times been considered relevant by the Commission for this Standard Havens factor.
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`See id. at 8 & n.8 (“Accordingly, the mere availability of a district court proceeding is not
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`enough to tilt the harms factors in favor of a stay.”); see also Tobacco Heating Articles, Comm’n
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`Op. at 15–16. Thus, overall, the Commission finds that Complainants would suffer some injury
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`from the grant of a stay pending appeal.
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` Where the Public Interest Lies
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`Apple argues that “allowing the Commission’s orders to go into effect before Customs
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`[and Border Protection] has approved Apple’s proposed redesigned Watch would be detrimental
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`to many consumers’ daily lives.” Mtn. at 22. Apple further argues that “the lack of a stay would
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`also pose an immediate setback for medical research, where Apple Watch plays a critical role.”
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`Id.; see also id. at 22–23. Apple additionally declares that “without a stay, the Commission’s
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`PUBLIC VERSION
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`orders will have a significant, negative effect on the economy in general.” Id. at 23. Apple
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`points to the number of its U.S.-based employees and to the presence of U.S.-based components
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`suppliers, developers, and accessory manufacturers. Id. at 23–24. Apple also makes a vague
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`reference to a “detrimental impact on the healthcare field.” Id. at 24. Apple additionally asserts
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`that “removing Apple Watches from the market virtually overnight may both ‘lessen
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`competition’ and—at least in the short term—allow other companies to potentially impose higher
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`prices.” Id.
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`The Commission finds that the public interest does not support a stay pending appeal, and
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`in fact counsels against granting a stay. As Complainants point out, Apple’s arguments have
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`already been considered and rejected by the Commission in the Commission’s final
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`determination. See Oppn. at 23–24. In addition, the “public interest favors the protection of
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`intellectual property rights by excluding infringing products.” Tobacco Heating Articles,
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`Comm’n Op. at 16–17 (quoting Certain X-Ray Breast Imaging Devices & Components Thereof,
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`Inv. No. 337-TA-1063, ID at 281 (July 26, 2018) and citing Merial Ltd. v. Cipla Ltd., 681 F.3d
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`1283, 1306 (Fed. Cir. 2012); Douglas Dynamics, LLC v. Buyers Prods. Co., 717 F.3d 1336, 1345
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`(Fed. Cir. 2013)).
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`
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`Balancing the Standard Havens Factors
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`Apple has not shown that the weighing of the Standard Havens factors, as modified via
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`Commission jurisprudence, favors granting a stay pending appeal. Apple has failed to show the
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`existence of an admittedly difficult legal question. Additionally, Apple has not shown that it will
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`suffer irreparable harm from allowing the orders to remain in place pending appeal.
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`Furthermore, Complainants would suffer some harm from a stay. Moreover, the public interest
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`lies with denying a stay. Overall, after weighing the Standard Havens factors, the Commission
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`has determined that Apple’s motion should be denied.
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`PUBLIC VERSION
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`B.
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`Potential Government Shutdown
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`Apple also asserted in its Motion that a potential federal government shutdown may
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`prevent or inhibit the Presidential review process of the Commission’s remedial order and thus
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`the Commission should exercise its statutory authority to order a stay because “justice requires”
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`it exercise its “inherent power” to order a stay “to protect the integrity of its own proceedings.”
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`Mtn. at 25–27 (citing 5 U.S.C. § 705; Tokyo Kikai Seisakusho, Ltd. v. U.S., 529 F.3d 1352, 1360
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`(Fed. Cir. 2008)); see also 19 U.S.C. § 1337(j). However, after Apple filed its motion, the
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`federal government was funded through at least the sixty-day period of Presidential review.
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`Accordingly, this part of Apple’s motion is denied as moot.
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`V.
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`CONCLUSION
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`Apple’s motion to stay enforcement of the exclusion and cease and desist orders pending
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`appeal and/or in light of a potential government shutdown is denied.
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`By order of the Commission.
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`Issued: January 3, 2024
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`Lisa R. Barton
`Secretary to the Commission
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`14
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