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A US judge has said that she won't ban Samsung tablets on functionality, but might still do so based on design, and that Cupertino has yet to demonstrate those patents are valid.

The comments were made by Judge Lucy Koh, who isn't deciding if there is genuine infringement – that will take a lot longer – but the judge will soon rule on Apple's injunction on the sale of Samsung tablets within the USA, which is probably more important.

Apple had requested a ban based on patents around utility and design. Koh said she would probably reject the claim based on utility, but is still considering the design patents and might yet change her mind on even that "tentative" decision.

Samsung doesn't have to demonstrate that it's not infringing, only that there is significant doubt as to which way the eventual court case will go. Banning Samsung tablets ahead of that case would be very damaging to Samsung, but Apple argues that failing to ban would irreparably damage to its own interests.

Such a ban would last until the patent case was properly resolved, which on previous form could take years. What matters now is the forthcoming holiday season: with a kibosh in place Samsung will likely cough up or redesign, or a bit of both, just to get its products on the shelves.

In Australia and Germany, where bans are already in place, Apple successfully argued that once a punter buys a Samsung tablet they're unlikely to switch into the Apple ecosystem, so Samsung will have gained a lifelong customer through the use of an infringing product. That's very self-deprecating for Apple, but shows how important it is to snag those first-time buyers.

In the US the hearing closed yesterday, and a judgement is expected "fairly promptly", so it will be a sleepless weekend in Cupertino and Seoul. ®

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