Beginning legal action with a reexam already in the works allows DM to pick and choose who to apply early settlements to and does not preclude them from asking for higher pre-reexam settlement numbers if they so choose, or waiting for the reexam results to conclude. It appears to offer the best of both worlds, and expedite the process for shareholders who would otherwise have to wait another year or two, post reexam results, to file and come to terms.
Because infringers would be looking at even more risk should they come up on the wrong side of the reexam, it seems DM would be in the best position possible to leverage the reexam situation. You could have a rush to settle in the midnight hour.
What happens if EDIG does nothing, banking on the reexam only, and then loses the reexam?
The only consideration I can see for delaying until after the reexam is that DM saves the costs of 50 or so filings, which is a very real cost to them, in the event EDIG comes up short on reexam.
I would hope DM takes an agressive posture, surprises and begins laying the ground work for round 3, which further indicates their faith in their own FlashR patent analysis.
