The Federal Circuit Court of Appeals Friday sent the temporary injunction on the Samsung Galaxy Tab 10.1 back to the district court that issued it for reconsideration.

The jury that awarded Apple over a billion dollars in damages for infringement didn't find that Samsung infringed the D'889 design patent the injunction was based on despite both the Federal Circuit and the district court's assessments.

Samsung wants the injunction lifted and went to the appeals court.

Apple wants the Tab part of the jury verdict overturned and Samsung hit with a permanent injunction. The Galaxy Tab 10.1 is old but Apple wants the permanent injunction to keep other Samsung iPad look-a-likes out of the market. A decision on its motion won't be made until after a December 6 hearing.

District Court Judge Lucy Koh now finds herself in the unenviable position of having to assess Apple chances of getting the jury verdict overturned ahead of the December 6 hearing.

Whatever she decides to do now could be up for grabs after the hearing.

Florian Mueller of FOSS Patents says, "I think Samsung has pretty good chances of winning a dissolution of the preliminary injunction at this stage, but even if it does, Apple could still win a permanent injunction against further infringement of the D'889 patent later. An ‘on again, off again' injunction would be odd, but it's procedurally possible."