I don't understand why you keep highlighting the phrase that the the district courts have original and exclusive jursidiction over patent cases. No one is denying that fact. However, that does not mean that a conflicting finding by the ITC and the district court can't be appealed to the CAFC.

Just as an example, if the NDCA had ruled in favor of HTC already, TPL would not have had any chance at the ITC because the NDCA decision would have to be followed by the ITC. The reverse is obviously not true. So now, because the ITC ruled against TPL, the most advantageous outcome would be that the ITC reverse its position and that the NDCA find in favor of TPL. That would be a 100% win. Everyone knows this.

The reality is that if there is a split, TPL's opponents will eboldened. Remember, in that kind of a situation, there is no possibility of an import ban. It's almost certain that TPL can't win an injunction. Damages in favor of TPL would be limited to a reasonable royalty and there wouldn't be lost proficts since TPL doesn't make product.

Bottom line:

1. It's critical that the NDCA and ITC (appeal) go in favor of TPL if TPL is to gain the most leverage and maximize its potential revenues.

2. An NDCA win with an ITC split makes collecting revenue more difficult.

3. An NDCA and ITC loss would make for a very difficult scenario.