I have only read the portion of Bancorp as it is referenced in Judge Lynn's decision. That discussion led me to believe that the Bancorp case had gone to verdict and that the rulings which had been made along the way were no longer interlocutory. Since IDCC/ERICY was resolved without the need for a jury verdict, I can't see how there was any necessity for appeal of non-determinitive rulings.
The PSJs gave the parties an idea of the condition of the football field that they would be playing on, but, they did not tell the parties what the score would be. IDCC and ERICY decided to reach a decision based on the field conditions and not on the play of the game. Once that decision was reached, ERICY had as much to gain from the vacatur as IDCC did. NOK had had 10 years to intervene and they had sat on their thumbs.
NOK, seemingly negotiated in bad faith after the ERICY settlement. They led IDCC to believe that they would reach an agreement within the four corners of the '99 agreement. IDCC was driven by their need to abide their agreement with ERICY and had no reason whatsoever to appeal the PSJs, when they could be set aside by the simple expedient of a vacatur.
JMHO-Oso
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