Reread North40000's post on this. He has it right.
The only thing I would add is that the judge even if she has decided inequitable conduct exists and she intends to so rule, COULD decide simply to take the case under submission on that defense and rule in a single decision after the second trial.
If I were a judge, and decided that an affirmative defense decided the outcome, I would enter that as a final judgment and move on to other matters and let the CoA make their determination. If they agree, I am done. If not, I have more work to do.
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