I'm not hung-up on any numbers. But I don't believe your argument is valid.
Hynix is not presenting new information or pointing out flaws in Whyte's interpretation of the law - they are whining that Payne's view is different.
No, that's not true. Hynix is arguing flaws in Whyte's use of law. Whyte used the standard "reasonably probable" to determine litigation status. Hynix argues he should have used "foreseeable". Go read the brief again.
It sounds like a reasonable argument to me. But I'm not a lawyer and therefore can't defend the merits of the argument.