YES...

Remember, there were 8 claims set for MH. They only got to try 2 claims, and there were no evidence taken on the remaining 6 claims..

Now , DM is asking the Judge to rule on claim 5, which also deals with FLASH. This is what they told the judge:

"Accordingly, e.Digital proposes that the next step in this case is for the Court to enter an order construing the term “flash memory” of claim 5 of the ‘737 Patent"

The reasoning explained in the Joint Mortion is given as follows:...

further construction of the Order is likely to facilitate e.Digital’s stipulation of non-infringement of this Patent, thereby avoiding the need for summary judgment proceedings and simplifying and further expediting these proceedings for disposition, the Undersigned Defendants do not oppose Plaintiff’s request for further construction of the term “flash memory” as used in the ‘737 Patent."

Pay attention emma:

1) Jameson-Youngwirth are saying, "wait a minute Judge. Although, your ORDER construes certain aspects of the 'sole memory' limitation of the the 774 Patent which is disputed by e.Digital, e.Digital is prepared to stiplulate to non-infingement of the assorted claims of the 774 Patent with respect to the accused products offered by Defendants identified in EXHIBIT "A".

Then there is the list of defendants in EXHIBIT "B" , which are subject to further discovery for 90 days before DM decides if they should be treateds like those in EXHIBIT "A" list as fare as 774 is concerned.

2) The most important assertion by DM relates to claim 5 of 737 Patent. DM says point blank that the ORDER is not dispositive with respect to claim 5 of 737 patent.

And DM specifically ask the court to issue another order within 30 days as follows:

"Accordingly, e.Digital proposes that the next step in this case is for the Court to enter an order construing the term “flash memory” of claim 5 of the ‘737 Patent".

Here, DM is calling the judge on her "inference" that ruling on claim (1) of the 2 tried claims was "dispositive" of the case.

DM is sayinf not so fast judge; you owe me a ruling on claim 5 of 737 in 30 days.

So, we wait and see what the judge does here.

The fact that DM has put in print the issue of Summary Judgments, and the fact that he is pressing the judge to issue an ORDER regarding regarding claim 5 of 737, is no less a mark that he is trying to raise these ORDERS as affecting the rights of the plaintiff in a "Material way", thus appealable.\

We will see sometime before the 30 days run out.

GLTA...

Gil...