OK, I believe you. But if they feared the judge would rule against them, can you please explain why EDIG would ask the court to construe the term "flash memory" as it relates to claim 5 of the '737. Especially when the defense didn't think it was necessary. And if they've changed their mind, why haven't they withdrawn their motion?

From Doc 398:

2. The ‘737 Patent: e.Digital contends that the Order did not construe any terms of claim 5 of the ‘737 Patent and, therefore, the Order is not dispositive with respect to that claim. 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. Defendants acknowledge the Court’s statement at footnote 1 of the Order and believe, as stated later in the Order at page 16,that the Court intended to construe “flash memory” in claim 5 of the ‘737 Patent with the same effect and outcome urged by Defendants. Nevertheless, if 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. The parties believe the current record is sufficient for any further construction of the term “flash memory” and do not request another hearing for this purpose.