Yes, the CO information is available to future defendants. However, these same defendants are aware of the joint motion and the possible ruling and thus connection between 774 and 737 as Doni has pointed out that may make the Markman ruling moot. It very well could be advisable to proceed with that potential hammer in your tool box. Then you need to weigh the time value of money--do we settle for something less in the short term or do we hold out for more money, taking longer to get to that point and possibly end up with zippo? I am not saying that I know which is right, but it also does not seem clear cut to me.