updated 07:12 pm EDT, Wed August 14, 2013
Sales ban may apply to current as well as older products if they are still infringing
Following Apple's victory against Samsung on Friday that resulted in sales and importation injunctions of any of Samsung's products that infringe on two of Apple's non-SEP patents, the Korean company has posted surety bonds that allow it to continue selling such devices in the US during the mandatory 60-day Presidential review period. Oddly, Samsung has already presented "design-around" versions of infringing products to the court and gotten clearance for those versions to be sold, but for now wants to continue importing the infringing products.
Though most of the Samsung products affected by the ITC ban may be older or discontinued, it could reach into still-sold and current products if they are claimed by Apple to be demonstrably infringing the same patents. To that end, Samsung has posted a thus-far-undisclosed amount that represents 1.25 percent of the total value of the products, to cover the (likely) event that the Obama administration does not veto the ITC ban. A second overturn of the ITC is seen as unlikely because Samsung's infringing was of non-standards essential Apple patents, whereas the earlier ITC ban on some older GSM iOS products (but including the still-popular iPhone 4 and iPad 2) involved patents declared essential to UTMS cellular communications.
The reason why Samsung hasn't minimized its exposure to possible violations by simply implementing the already-cleared "design-around" products it presented to the court two years ago into the US market is likely down to the compromises it has had to make in the affected products to avoid further infringement. The company may feel that the implemented design-arounds lessen the overall user experience and is buying time until it can come up with better solutions.