At no point did NEOM lose the legal right to license the '048 patent. Maybe agencies were not willing to use the technology because of the re-exam, but media buyers never had the right to sell the technology without a licensing fee.
A licensee can begin licensing a patent application before it is even filed. One of the prosecution arguments for patentability is the patent is already generating revenues.
I spent some time with media buyers working for me and I don't ever remember a conversation about whether a licensee was in litigation or re-examination. We always added a licensing indemnification clause which seemed to satisfy our general counsel. Maybe, we were just burying our heads in the sand, but we were happy to do so and write a check.
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