Corp....unfortunately it does work that way and indeed has worked that way as evidenced by Nok's successful motion. Imagine if the settlement was conditioned upon vacatur. Ericy could now rescind given the outcome of Nok's motion.
IMO, conditioning the settlement upon vacatur could have been disasterous. While it is true that had the settlement been conditioned upon vacatur, the trial court may have denied Nok's motion due to the prejudicial effect upon the settlement, it is also true that some creative lawyer could have crafted an argument around Barnum which compelled an opposite result. Even if the court did not agree with that creative lawyer, it would have wound up on appeal and the Ericy settlement would have been in jeopardy during the entire appeal process.
Additionally, multiply that creative lawyer's argument by the number of infringers who would have also like to see the psjs unvacated and imagine the uncertainty which could have resulted. These were very real issues which F&J and the BOD had to contend with and consider at the time the settlement agreement was drafted.
IMO there was no error, it was a calculated risk.
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