"10. For the sake of clarity, this Stipulated Partial Judgment of Non-
Infringement is not a final judgment pursuant Federal Rule of Civil Procedure 54(b) and, if so necessary, is to be merged and/or become part of any final judgment entered in this matter and may be incorporated as an exhibit thereto."

Though this reads with a bit better detail on 774 than the previous stipulated agreement, it still comes down to a judgment of claims construction proceedings. If the judge has to rule on anything relating to the Markman prior to a settlement, if so necessary an exhibit is merged with that ruling.

What I have a problem understanding, the defendants are agreeing to a non-final detail of non-infringement ....without prejudice.....conditioned to the outcome of a court ruling....if it happens.

without prejudice is binding, and as far as I figure, the defendants will always be sitting on this open issue.

I guess the stipulated agreement can lean in two directions, out weighing without prejudice on behalf of the defendants if the parties reach a settlement prior to Markman ruling....and if things do move to a Markman judgment e.Digital can enforce on the without prejudice issue after receiving positive results of appeals.

In any event, 774 is part of the negotiation process. It can disappear, or re appear depending on the how things shape up prior to the conclusion of Markman proceedings....and what exactly is agreed to in the stipulated agreement.

With that, if without prejudice can be out weighed through the language of the agreement on behalf of the defendants (depending on how claims construction issues pan out), there would have to be verbiage within the agreement keeping e.Digitals rights to appeal the CE ruling beyond this stipulated agreement.

anyway, they are negotiating...
doni