Before the trial began Apple had requested a preliminary injunction banning the sale of the iPad lookalike — a request Judge Lucy Koh, declaring the two products “virtually indistinguable,” had granted and an appeals court had affirmed.

“Samsung appears to have created a [tablet] design that is likely to deceive an ordinary observer,” Koh wrote in her order, “inducing him to purchase one supposing it to be the other.”

It seemed like a slam dunk for Apple, but due to some confusion about what it means for a patent to be unregistered (see Did the jury blow the Galaxy Tab verdict?), the Galaxy Tab managed to escape the sledgehammer: The jury found that it did not infringe Apple’s design patent.

Samsung promptly filed a motion to have the sales ban lifted. A hearing was scheduled for Thursday, Sept. 20, and court watchers began taking bets on what Judge Koh was going to do about an element of the jury’s verdict that seemed to fly in the face of the facts.

In an order filed Monday, we got her answer. She denied Samsung’s motion “without prejudice” and kicked the decision up to the appeals court — along with a note that the motion raises “a substantial issue” that must be addressed.

AppleInsider has Judge Koh’s order. You can read it here. Apple is expected to file a so-called Rule 50 motion Friday asking Judge Koh to overturn the jury’s Galaxy Tab decision. According to FOSS Patents‘ Florian Mueller, her ruling may depend on what the appeals court says and when they say it.