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The 3DS hardware has been breaking even since last July:

http://www.destructoid.com/nintendo-no-longer-selling-3ds-at-a-loss-231943.phtml

There's no way the hardware is not currently profitable. How much is anyone's guess, but in any case this reasoning is just weird to me. Perhaps the lawsuit's validity only accounted for a certain time frame when the system wasn't profitable? Who knows...

EDIT: Just read BlkPaladin's post and that actually makes a lot of sense. That's got to be the case.