"When a defense of invalidity under Section 282 rests on documentary evidence that was not considered by the United States Patent and Trademark Office, whether the factual predicates of the defense must be proved by “clear and convincing evidence” or some lower burden of proof."

This is exactly why request for prior art examinations are asked for during early stages of a trial. In these cases the court can be asked to determine validity. In our case with the J's we did not want the court to determine validity. It would have been a great disadvantage to us. In court both sides are allowed to argue there points for, and against validity. On the contrary at an ex-parte re-exam only the patent holder is heard from, after the initial wriitten complaint. Big advantage. If a court decides validity, it can be appealed by either party. In a USPTO re-exam only the patentee can appeal. Big advantage. These are the reasons, I believe, that we did not go forward in trial at Texas. Prior art issues were brought to light, the USPTO agreed. The J's only defense was validity, they would have asked the court to determine validity. Judge Ward who is not known to await USPTO decisions would have decided validity.One reason the re-exam is taking so long is because all prior art (hopefully) will be brought to light and determinations will be made.