" I can certainly see a scenario where the lawyers agree that if a Markman term is ruled one way, you infringe and pay X amount of dollars. And if it's ruled another way you don't infringe and owe nothing - or a different amount because you infringe on a different number of patent claims." .................... Fut, you say the above. My only concern with the above scenario is that judges can decide to define a term separately from either party's proposed construction. How would one party know they "won" the contingency clause? You might have to litigate who won the contingency. Judges adopting their own construction is quite common and I believe does not lead one to believe a contingency based on a Markman outcome would be logical. M&A activiy would seem to be a simpler solution.