Its all a crap shoot, but hear me out.

If the thought is that the NDCA truly did a better job at claim construction than the ITC, and there is confidence that the CAFC will likely construe along the lines of the NDCA claim construction, then why not file an ITC appeal? There's little doubt the cases would get consolidated, resulting in the potential that an NDCA-like claim construction could be applied at the ITC. That would be huge.

I don't see much of a downside since the ITC case was lost anyway. That being said, ITC fact findings are given deference at the CAFC, so there is that possible risk if there are facts that are negative for TPL's position that normally wouldn't come up in only an NDCA appeal.