From Fish & Richardson website. Didn't Fish & Richardson try to initiate the last re-exam which was rejected? It is my hope that Judge Ware is not the final decision maker in this current litigation. Personally, I think the new judge has the right (techie)credentials and Judge Ware may be focusing more on his retirement in the next few weeks.

When a patent is the subject of pending litigation, the party accused of infringing the patent may seek reexamination of the patent in the PTO. At the same time, the accused infringer may also ask the district court to stay the litigation pending the outcome of the PTO’s reexamination. The accused infringer would argue, in essence, that the court should wait to see whether the PTO invalidates the patent during reexamination, obviating the need for further litigation.

The grant of a stay by the court will impact damages if the patent ultimately emerges from the reexamination and is then litigated. During the period of the stay, damages will have been mounting if the accused infringer continues to manufacture or sell the accused products. The average duration of a reexamination period is about 2 years, meaning that 2 additional years of damages would accrue during the reexamination. One way the accused infringer can avoid such accrual of the damages would be to redesign the product to avoid infringement, rather than continuing sales of the accused product during the reexamination stay. Of course, if the case is stayed for reexamination and afterward the accused product is found not to infringe, then this issue would become moot.

http://www.fr.com/patentreexamination/