I disagree with your statement below-
"However, clearly given the markman ruling, we concede that at the present we can't win. "
ARM was successfully removed from the current lawsuit by TPL- no more no less. Whether we can or cannot win is not the point. It is about simplifying the current suit. Determinations will be made later to reopen the suit with ARM and it will be then when we find out if we "can't win" or not.
You remain on the watch list with statements like that.