Fill the gap and move back up. Judge has stated that they can't keep the case open forever because of all the refilings but he doesn't have a way to stop it either. A decision can be made on the evidence laid before him but it opens the door to appeal if the re-examination comes out differently than expected.
The negative new '336 reexam news is not very well known. Those getting out this am are beating the rush. I expect a continued slow erosion of 1-2c a day over the next few weeks as people reduce or eliminate their positions in light of the new uncertainty on an issue that both TPL and PTSC issued PRs saying was resolved. I read the McDermott patent that is listed as prior art and it does not seem like it by itself will be enough to invalidate the '336 but the fact is the USPTO is as slow as molasses and takes years to resolve reexams. The main problem is the Supreme court ruled on a case that serves as precedent whereby those wishing to invalidate patents can use any combination of prior art to argue a patent is obvious. Even after resolution they take 3 months to simply publish the reexam certificate.
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