OK, then in the hypothetical situation where Dish wins on appeal or the decision is vacated, why can't they go back to Folsom and ask him to revise his decision?
This appeal is for a different thing, called the new design, not the old design.
The old design was found to infringe by the jury, E* in fact did ask Judge Folsom to reivew and reverse or revise the finding, the judge denied such request, after the judge issued his final judgment and the injunction, E* again asked the judge to reverse, revise, or at a minimum to stay his order, the judge again denied such request.
E* then appealed to the appeals court, got a stay, then managed to reverse half of the jury's verdicts on the ground that Judge Folsom erred on two claim constructions, but that was not enough to overturn the infringement verdict.
After the appeals court unheld Judge Folsom's final judgment and the injunction, E* actually petitioned the appeals court for a rehearing, but that request was denied, and after that, E* petitioned the Supreme Court for a review, when the SC declined the review request, that was the end of the game for E*.
Believe me when I said E* had exhausted all its appeals. That decision was final and cannot be revisited. Charlie is not the kind of person who would have left any stone unturned. But then had his attorneys thought about combining the two prior patents together, rather separately during the first reexamination, things could have been a lot different.
What we have now will be a different decision regarding the new design, different than the old, related but not the same.