As expected, Apple is fighting at all levels against the import ban of older iPhones and iPads that Samsung won from the ITC a month ago. Last week I published Apple and Samsung's submissions to the United States Trade Representative (USTR), to whom the White House has delegated the authority to veto ITC exclusion orders. Today the following entry in the ITC's electronic document system appeared and indicates that Apple brought a motion on Wednesday (the motion itself is sealed) requesting a stay of remedial orders pending appeal (click on the image to enlarge or read the text below the image):
Official Receive Date: 07/03/2013 03:31 PM
On Behalf Of: Apple Inc.
Respondent Apple Inc.'s Motion for Stay of Remedial Orders Pending Appeal
The remedial orders are an import ban, a cease-and-desist order, and in a purely formal sense a requirement to post a bond (but the bond is zero).
Apple cannot file an appeal (to the United States Court of Appeals for the Federal Circuit) during the Presidential review period. It's now about half-time for the 60-day Presidential review period. If no veto issues during the 60 days, then the ITC order takes immediate effect. The period is shortened if the USTR makes a decision, one way or the other, before the end of the 60 days. In most cases the period simply lapses.
I wouldn't interpret Apple's motion as an indication that the USTR has officially decided not to veto the import ban. I guess we would have heard about a final USTR decision by now if it had been made on or before Wednesday (the day Apple filed the motion). Also, there's no sign on the Federal Circuit's docketing system of an appeal by Apple.
I guess Apple is just preparing for the scenario in which the ITC decision is not vetoed. The motion presumably announces an appeal for the event that there is no veto (there hasn't been one in decades). And I guess the ITC will deny the motion just like district courts typically deny stays after ordering an injunction. In that case, Apple will subsequently go to the Federal Circuit and ask for an emergency stay. Actually, two motions would be filed with the Federal Circuit. There would be a motion for a stay pending the entire appeal. Simultaneously there would be an additional emergency motion for a stay pending the Federal Circuit's adjudication of the motion for a stay during the entire appeal. (Samsung also filed motions of those two kinds in response to the preliminary injunctions Apple won last year.)
The final ITC ruling hasn't been published yet. Until it becomes available, the public redacted versions of the parties' submissions to the USTR are the best source of information on the underlying logic of the exclusion order.
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