The penalty could be that if edig has a favorable Markman, and you are found to have wilfully infringed, you may have to pay triple damages. If you settle 1 day after the favorable Markman, you have to pay more than if you settle now or at any time before the Markman.

It is a business decision. Do you want to wait and possibly pay more, or have a hand in determining your own destiny (and payment/penalty for infringing) now - that is the question.

Skeepinitreal