For the moment, Apple appears to have an upper hand in fierce and protracted patent infringement battles with Samsung over smartphones and tablets.
Both companies are seeking rulings that would take the competitor's products off shelves. Apple's new exclusion order and injunction appeal each have a good chance of success, leaving Samsung defending itself and looking for new options of attack.
Samsung sought an exclusion order against Apple from the International Trade Commission (ITC) based on US patent number 7,706,348, involving a transport code format indicator for CDMA technology. Samsung initially won the exclusion order, but on August 2 the US Trade Representative vetoed the import ban citing concerns that the patent is a standards essential patent requiring licensing on fair, reasonable, and non-discriminatory terms.
In other words, the import ban was vetoed because it was unfair for Samsung to encourage others to use the technology by including it in the standard and then to use the threat of an exclusion order to negotiate the license. As an executive branch decision, the veto is based on policy rather than a strict legal standard.
Apple is seeking its own exclusion orders. On August 9, the ITC granted one based on patent number 7,479,949 on scrolling and translating a touch screen and patent number 7,912,501 on detecting whether or not a plugged in audio device is a microphone.
As with the earlier threat of an Apple import ban, the exclusion order will go into effect in sixty days unless President Obama or the Trade Representative vetoes the order. In this case, however, the Apple patents are not standards essential patents, so the Trade Representative’s reasons for the previous veto don't apply.
Vetoes of ITC exclusion orders are very rare, so a veto in this case is unlikely. Samsung claims to have redesigned the devices to avoid infringement, and the ITC agreed that the design-around devices do not infringe. So, it is most likely that Samsung will use the sixty-day review period to patch the remaining infringing devices to escape the ban.