The catch 22 argument that TT&C have to use in an "Infringement" trial, is the desire by the J3 to invalidate the patents.  Afterall, what reason would the J3 have for invalidating patents that they do NOT infringe on.  None.  I think that's a tacit admission of infringement that a jury can logically use to support infringement.  Obviously, procedurally, it's a move the J3 made to make the case go away.  But by gambling on the re-exam/invalid course of action, I think it hurts their ultimate litigation arguments.