You ask: ``In your experience could a case be made that if there were prior knowledge of infringement or potential for same by the J3 (for example) that the indemnification contract would then be less solid??``

Though I haven`t experienced this, I would think the answer is ``no``. But you bring up an interesting point. The J-3 have undoubtedly continued to buy chips, essential to their continuing business, from ARM AFTER having been given notice (by TPL) of a claim of infringement and, for that matter, after ARM had been given notice. Makes you wonder if the consideration/cost of the inclusion of the Patent Indemnification Clause went up in those more recent contracts/purchase orders.

My ``strategy mind`` says probably no increase (though you`d think it would be a significant increase, as the risk level went way up). If there was a big increase in the cost of chips (which is how it would appear; i.e., such cost would not be a descrete cost item in the contract/PO) with no other justification, it would reveal the perceived higher risk assumed by ARM when those contracts were ``opened`` by the J-3 as evidence that they are indemnified from infringement claims, thereby demonstrating that there was indeed an increase in perceived risk. Remember, it`s on a contract by contract basis, so to gain relief, the J-3 would presumeably have to display each contract in court as proof. Thinking it further, this may be one of the reasons ARM stepped forward and acknowledged that all their contracts with certain entities (e.g., Toshiba) contained the clause. Such acknowledgement would remove the burden of the entities having to display their contracts, containing the clause, as proof.

This last bit is just conjecture on my part, and maybe overthinking things. Who knows what their strategy is? -though I`m convinced that the J-3 knew full well that their contracts with ARM contained the clause - they paid extra for it - and that they probably could have revealed this at the onset of litigation. Instead they pushed back and dragged things out for no apparent reason other than to buy time for ARM. This is why I threw out the word ``conspiracy``. And think of this, it actually cost the J-3 money/resources to drag this out. Makes you wonder what ARM is doing for them to reciprocate. There I go overthinking this again....LOL

`Cuz I KNOW nuttin`!

SGE