On April 15, "getexpelled," a user which has been posting the official clips from the movie "Expelled," posted new animation footage of the operations of the cell which is clearly not derived from XVIVO's footage. (ERV refers to this footage as a "toddler animation" and "a shitty Las-Vegas-Meets-TeleTubbies 'Inner Life'".)
I suspect they already took action to put this new footage into the film that will come out tomorrow instead of the animation which they copied from XVIVO, which means that they have already complied with that demand from XVIVO's infringement letter. That also means that their lawsuit for a declaratory judgment in Texas is really an argument that this new footage is not infringing, which they'll probably win--this footage is not infringing. But it also means that, yet again, they've been thoroughly deceptive in how they operate, and have implicitly admitted that they were, in fact, infringing XVIVO's copyright in the footage that they showed in the early screenings.
That's probably not worth the effort for XVIVO to sue them over. But it's definitely worth pointing out.
UPDATE (April 22, 2008): Apparently the XVIVO-infringing animation is still in the released film, after all.