..."Seems all part of the plan by the other side...."

or it could be DM's strategy all along...... get a ruling from the USPTO that "no substantial new question of patentability exists" just days before the Markman hearing. Look at the apparent timing.

How would that look as part of the case to be presented ?

Do you think that a lawyer asks a question without already knowing what the answer is?

Do you think DM did their DD to take this case on contingency?

After reviewing their responses to the current submitted patent application mentioned here a few months back, I think they know what they are doing. You remember, the one that in part ripped the USPTO's determination of non-patentability based on prior art when the prior art cited did not exist in patent form on the original application date? (On the date that EDIG applied, the other patent had not been issued, but was 'applied for', if I remember DM's reply correctly.)