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JUSTICE HARTMAN delivered the opinion of the court:

Spectramed Inc. (Spectramed) purchased the assets of a medical productsbusiness owned by Gould Inc. (Gould) including certain patents owned by Gould. Two patent infringement claims involving Gould products were made againstSpectramed and it filed a declaratory action against Gould seeking recovery oflitigation and settlement losses in defending these claims. Spectramed appealsthe circuit court's grant of summary judgment in favor of Gould, and presents asissues whether: Spectramed was entitled to summary judgment since Gould wasresponsible for defending and paying the infringement claims because they arosebefore the closing of the Gould-Spectramed Asset Purchase Agreement (Agreement);Gould breached three warranties found in section 4.07 of the Agreement;Spectramed was required to prove reasonable reliance on a Gould warranty; and thecourt should have given effect to a Gould letter purporting to agree toSpectramed's indemnification.

Gould, interested in selling its Medical Products Group (Group) in 1985,prepared an offering memorandum for prospective purchasers describing the Groupas a "leading manufacturer of physiological monitoring devices *** addressing theworldwide hospital market." Two of the Group's products were reusable anddisposable blood pressure transducers, the subjects of the present patentinfringement claims. The Gould memorandum asserted that "[p]atents are held [byGould] for key design features" of the transducers.

Douglas R. Hillier, employed intermittently by Gould and its predecessorcorporation between 1971 and 1986, was in charge of marketing Gould's medicalproducts, including transducers. He later became Gould's director of operationsfor manufacturing transducers and other products, but left Gould in November 1983to work for a predecessor of Baxter Healthcare Corporation (Baxter), where hebecame familiar with transducers manufactured by Baxter. Hillier returned toGould in May 1984 as president of the Group's Cardiovascular Products Division,and there directed the routine evaluation of competitors' transducers.

When Gould announced its intention to sell the Group, some 35 of theGroup's managers (Managers), including Hillier, expressed their interest in itsacquisition. R.J. Aplin, a Group vice-president, consulted Kelso & Company(Kelso), an investment banking firm that specialized in leveraged buyouttransactions, and negotiated the purchase by the Managers, with the assistanceof the buyers' attorneys and Kelso's financial advisors. The Managers investedapproximately $1 million in the $100 million acquisition, the remainder of whichwas financed by Kelso, other investors, and bank loans.

On April 25, 1986, Kelso issued a written offer on its own behalf and onbehalf of Aplin and all the Managers, to purchase the Group's assets andbusinesses, "subject to specified liabilities." The offer provided that, uponits acceptance, Kelso and the Managers would form a new company and prepare theAgreement, which would include indemnity provisions "with respect to, among otherthings, all events arising on or prior to the closing, litigation, taxliabilities, product performance, product liability and qualified benefit plans." Gould accepted the offer on May 6, 1986.

The closing date for the Agreement was October 10, 1986. The buyer wasidentified as MPG Acquisition Corporation, subsequently renamed Spectramed. Aplin became chairman of the board, president and chief executive officer, andHillier became division president and corporate officer. Other Managers alsobecame Spectramed officers and directors.

One week before the closing, on October 3, 1986, Utah Medical Products,Inc. (Utah Med), sent a letter to Hillier in his capacity as a Gould officer,advising him of its September 1986 receipt of a patent (Wallace patent) fortransducers. Hillier forwarded the letter to B. Moran, a Group vice-president,who was in charge of patent matters, and also told Aplin about the letter. OnOctober 6, Moran forwarded the letter to Spectramed's patent attorney, whosubsequently advised Spectramed that its transducers did not infringe the Wallacepatent. This advice was reduced to writing in December 1986. A second law firmagreed that the Wallace patent was invalid, and suggested that Spectramed eitherignore the Utah Med letter, send the company a letter expressing its belief thatthe patent was invalid, or file for reexamination or declaratory judgment toinvalidate the patent. Based upon this advice, Moran suggested to Hillier thatSpectramed file for reexamination.

Moran and Hillier met with representatives of Utah Med on December 2, 1986. Utah Med proposed the grant of a license for the Wallace patent to Spectramed forbetween $250,000 and $400,000. Ten days later, Spectramed advised Gould of UtahMed's potential claim. It also asserted its belief that Gould was liable for anylosses suffered by Spectramed pursuant to section 6.05 of the Agreement. Spectramed noted further that it had hired Gould's former attorneys to handle thematter, to which Gould was invited to object, and subsequently provided Gouldwith the legal opinion letters it had obtained from the attorneys on the validityof the Wallace patent. On February 5, 1987, Gould responded to Spectramed'sletter, stating that its present patent lawyers found no infringement of anyvalid Utah Med claims; it did not object to Spectramed's choice of legalrepresentation; and it agreed with Spectramed's interpretation of section 6.05as to Spectramed's continued manufacture and sale of certain products existingas of October 10, 1986, but not to any modification of those products.

In March 1987, Spectramed requested federal Patent and Trademark Officereexamination of Utah Med's patent, a copy of which was forwarded to Gould. During the reexamination process, in December 1987, Baxter acquired Utah Med'srights to the Wallace patent. On June 21, 1988, Baxter received a reexaminationcertificate narrowing some of its original patent claims, and confirming that theremaining claims were patentable.

On February 23, 1989, Baxter filed suit against Spectramed in a Californiafederal district court, alleging infringement of both the original and reexaminedpatents. On May 9, Spectramed informed Gould of the suit and also thatSpectramed had been acquired by British Oxygen Corporation. Gould was invitedto discuss these events with Spectramed's counsel. Gould responded that it wasnot liable either to Spectramed or Baxter.

A federal jury found the Wallace patent to be enforceable and thatSpectramed's products infringed the patent. Notwithstanding the verdict, thedistrict court granted Spectramed's motion for judgment as a matter of law,finding no patent infringement. The federal appellate court reversed, holdingthat Spectramed's products infringed the patent, and remanded the case to thedistrict court for a determination of the patent's validity. Baxter HealthcareCorp. v. Spectramed, Inc., 49 F. 3d 1575 (Fed. Cir. 1995) (Baxter I).

During the litigation of the Wallace patent, on June 17, 1987, Spectramedwas notified of a second claim for patent infringement by its transducers. Theclaim was based on another patent, the McCord patent, which had been granted onSeptember 10, 1985. In two letters dated August 8 and August 20, 1987,Spectramed informed Gould of the McCord claim, citing the indemnity provisionsof the Agreement. Gould responded that because the owner of the patent did notmark its products with a patent number, "there is no constructive notice of thepatent" and therefore no liability for infringement. Gould declined toparticipate in the litigation of that claim.

Baxter acquired the McCord patent in 1990, and filed a second patentinfringement complaint against Spectramed in a California federal district courton January 17, 1991 (Baxter II). Spectramed informed Gould of the Baxter IIcomplaint in June. Through continuing correspondence, Spectramed updated Gouldon the status of both cases and insisted that it was entitled to indemnificationfrom Gould under their Agreement. Gould continued to deny any basis forliability. Gould's counsel stated, however, that in the event liability wasestablished, Gould was "concerned not only about the manner in which thelitigation has been controlled, but also that Gould Inc. may have been foreclosedon any settlement opportunities without knowledge thereof."

In the Baxter II litigation, the federal jury favored Baxter, finding thatSpectramed's transducers infringed the McCord patent. The court thereafterissued a permanent injunction barring Spectramed's further manufacture or saleof the infringing transducers. Spectramed appealed. Following the appellatecourt's remand of the case in Baxter I and during the appeal of Baxter II, onJanuary 11, 1996, Baxter and Spectramed settled all the patent infringementclaims, which required Spectramed to make an initial payment of $15 million, andpay two million dollars per year for the next three years, plus royalties at therate of six and one-half percent of the net sales price of transducers sold inthe United States.

In July 1992, after Gould repeatedly refused to participate in the Baxterlitigation, Spectramed filed the instant declaratory action in the circuit court. Count I sought damages for costs expended in the Wallace patent infringementcase; count II asserted a claim for expenses incurred to defend against theMcCord patent; and count III alleged that Gould was estopped from relying uponsection 6.05 of the Agreement in denying liability.

After several years of discovery, Spectramed moved for summary judgment,asserting that Gould was liable pursuant to section 2.04(b) of the Agreement, andsought damages in the amount of $22.9 million. Gould also moved for summaryjudgment pursuant to Agreement sections 2.04(b) and 4.07, which contained severalwarranties. In its response, Spectramed also sought a summary determination ofthe liability issue under section 4.07, alleging that Gould breached at least oneof the warranties contained in that section.

Following oral argument, the circuit court ruled that there were no triableissues of fact; found that Agreement section 6.05 limited the scope of Gould'sindemnity obligations; with respect to patent infringement issues, held thatsection 2.04(b) was a general causal provision; and concluded that Agreementsection 6.05 took precedence over section 2.04(b), interpreting section 6.05 toprovide that "the seller would not be liable for damages accruing to the buyerfrom infringements once the buyer receives notice of those infringements." Thecourt ruled that because Spectramed's liability in both cases was limited toinfringements that occurred after receiving notice, Gould was not liable toSpectramed pursuant to section 6.05. Further, even if section 2.04(b) applied,the court found no pre-closing event establishing liability for either patent,because liability under the Wallace patent commenced after the issuance of the1988 reexamination certificate, and liability for infringing the McCord patentcommenced on June 17, 1987, after Spectramed received notice of the patent, andafter the closing. The court lastly determined that there was no basis for anestoppel claim.

Accordingly, the circuit court denied Spectramed's summary judgment motionand granted summary judgment in favor of Gould. Spectramed appeals.

Summary judgment will be granted when the pleadings, depositions, exhibits,and affidavits on file reveal no genuine issue of material fact and establishthat the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1994); Mobil Oil Corp. v. Maryland Casualty Co., 288 Ill. App. 3d 743,751, 681 N.E.2d 552 (1997). All evidence must be construed in the light mostfavorable to the nonmoving party, and most strictly against the moving party. Gatlin v. Ruder, 137 Ill. 2d 284, 293, 560 N.E.2d 586 (1990). Because summaryjudgment is a drastic remedy, it will be granted only if the right of the movingparty is clear and free from doubt. McCullough v. Gallaher & Speck, 254 Ill.App. 3d 941, 948, 627 N.E.2d 202 (1993). Appellate review of orders grantingsummary judgment motions is de novo. Zoeller v. Augustine, 271 Ill. App. 3d 370,374, 648 N.E.2d 939 (1995).

I Spectramed argues that it was entitled to recover the costs of defendingand then settling the two patent infringement claims under section 2.04(b) of theAgreement. The primary objective in construing a contract is to give effect tothe intent of the parties, which is to be ascertained from the language of thecontract. Omnitrus Merging Corp. v. Illinois Tool Works, 256 Ill. App. 3d 31,34, 628 N.E.2d 1165 (1993). If the contract is clear and unambiguous, the intentof the parties must be determined solely from the contract's plain language, andthe court may not consider extrinsic evidence outside the "four corners" of thedocument. Omnitrus, 256 Ill. App. 3d at 34. When interpreting a contract, thecourt must consider the entire document, not merely an isolated portion. In reEstate of Chaitlen, 179 Ill. App. 3d 287, 291, 534 N.E.2d 482 (1989). Where noambiguity exists, construction of the document is a question of law. Farm CreditBank v. Whitlock, 144 Ill. 2d 440, 447, 581 N.E.2d 664 (1991).

Section 2.04(b) of the Agreement reads as follows:

"Except as specifically provided in this Agreement, theDesignated Purchasers [Spectramed] shall not assume orpay any debt, obligation or liability of any kind ornature *** (ii) arising out of a claim made or a suitbrought with respect to an event occurring on or beforethe Closing Date. *** Sellers [Gould] shall retainliability for and defend, at their own expense, all suchclaims regardless of when they are asserted ***." (Emphasis added.)

Among the issues raised by this provision are whether the phrase "[e]xcept asspecifically provided in this Agreement" negates the applicability of section2.04(b) by virtue of section 6.05, which addresses the scope of Gould's liabilitywith regard to indemnification of patent infringement claims; and, second, whataction constitutes an "event" occurring on or before the closing date, whichwould trigger Gould's liability, regardless of when such claims are asserted.

With respect to the first issue, Gould contends that section 6.05, notsection 2.04(b), controls the present case. Section 6.05 contains a limitationon the general indemnification provision with respect to patent infringementsuits, as follows:

"An indemnified party shall not be entitled to assertany right of indemnification for any loss, damage orexpense suffered by it more than 24 months subsequent tothe Closing, except (a) for claims based upon *** patentor trademark infringements, which may be asserted up tosix months following the expiration of the applicablestatute of limitations, including extensions thereof[.] An indemnified party shall not be entitled toindemnification hereunder until the aggregate losses,damages or expenses suffered by it exceed $500,000("Threshold"), whereupon the indemnified party shall beentitled to indemnification hereunder by theindemnifying party for any loss, damage or expense inexcess of the Threshold; provided that no DesignatedPurchaser shall be entitled to indemnification hereunderfor any loss, damage or expense suffered by it forpatent or trademark infringements which relate to anyperiod subsequent to its receipt of written notice of analleged infringement from the party claiming suchinfringement. Notwithstanding the foregoing, thisSection 6.05 shall in no way limit or diminish theobligations of Gould and Sellers under Section[]2.04(b)." (Emphasis added.)

The plain language of both sections 6.05 and 2.04(b) clearly contemplatesthe applicability of section 2.04(b) to patent infringement claims. Section 6.05explicitly states that it should not be interpreted to conflict with or limit theapplication of section 2.04(b). Therefore, the circuit court erred in applyingrules of construction and holding that section 6.05 took precedence over section2.04(b).

A court may resort to rules of construction where language is ambiguous;however, an ambiguity exists only if the contract is reasonably susceptible todifferent constructions, not merely where the parties disagree on the properconstruction. Chaitlen, 179 Ill. App. 3d at 291. Here, the qualifying languagecontained in the two provisions - "Except as specifically provided in thisAgreement" and "this Section 6.05 shall in no way limit or diminish theobligations of Gould and Sellers under Section[] 2.04(b)" - evidences a clearintent that both sections must be read together, in harmony. Therefore, the ruleadvanced by Gould, that "where both a general and a specific provision ***address the same subject, the more specific clause controls" (Grevas v. U.S.Fidelity & Guaranty Co., 152 Ill. 2d 407, 411, 604 N.E.2d 942 (1992)), isinapplicable here, where the more specific provision was not intended to limitthe scope of the general provision. The circuit court erred in the instant caseby applying rules of construction.

The next question becomes what action will constitute an "event" undersection 2.04(b). Gould insists that consideration of that provision in thecontext of section 6.05 demonstrates an intent for written notice of the allegedinfringement to constitute the "event." Spectramed contends, however, thatGould's use of infringing features in its transducers prior to the closing dateshould be considered "events" triggering liability. A review of both provisions,in conjunction with federal patent law, leads to the conclusion that the "event"giving rise to liability was the manufacture and distribution of the transducerscontaining the features previously patented by others.

Under federal patent law, "infringement" occurs when "whoever withoutauthority makes, uses or sells any patented invention, within the United Statesduring the term of the patent therefor." 35 U.S.C.A. sec. 271(a) (Supp. 1997)(Emphasis added). It is, therefore, the actual manufacture, use or sale of theoffending product which infringes the patent. Nevertheless, despite theinfringement, the owner of a patented product may not claim damages forinfringement until after giving notice of the patent. One way of issuing noticeto the public is by identifying the patent on the product; if the product is notmarked, the patent owner may not recover damages for the infringement absentevidence "that the infringer was notified of the infringement and continued toinfringe thereafter, in which event damages may be recovered only forinfringement occurring after such notice." 35 U.S.C.A. sec. 287(a) (Supp. 1997)(entitled "Limitation of Damages"). Knowledge of a patent's existence orownership is insufficient to establish notice; "[a]ctual notice requires theaffirmative communication of a specific charge of infringement." AmstedIndustries v. Buckeye Steel Castings Co., 24 F. 3d 178, 187 (Fed. Cir. 1994).

Both sections 2.04(b) and 6.05 are consistent with federal patent law'sscheme of recovery for infringement claims. In patent law, a claim is made ora suit is brought with respect to the actual infringement of a previouslypatented product. Concomitantly, section 2.04(b) of the Agreement establishesthat Spectramed shall not be liable for "a claim made or a suit brought withrespect to an event occurring on or before the Closing Date"; logically, a patent"claim" or "suit" would be brought with respect to the actual infringement (themanufacture, use or sale) of the product and not simply the notice. See, e.g.,Maxwell v. J. Baker, Inc., 805 F. Supp. 728 (D. Minn. 1992) (notice occurred asof date that complaint was filed where patent holder failed to allege that noticewas given to alleged infringer at any time prior to filing of infringementclaim). It is not the notice that gives rise to the cause of action, or claim,but the infringement which does; notice is the equitable measure by which damagesare ascertained.

Recoverable damages, however, cannot commence before the date of notice tothe infringer. 35 U.S.C.A. sec. 287(a) (Supp. 1997). Mirroring patent law,section 6.05 of the Agreement states that Gould will not bear any damages orlosses for patent infringements "which relate to any period subsequent" towritten notice of the alleged infringement. In simple terms, Gould mustindemnify Spectramed for infringements that occur before the closing date; Gould,however, will not be liable for damages stemming from the infringement for theperiod subsequent to Spectramed's receipt of notice of the infringement.

In this case, the parties do not dispute that the McCord patent was issuedon September 10, 1985. Evidence in the record further establishes that the Gouldproduct containing the patented components was not marked. Further, the June1987 letter informing Spectramed of the McCord patent constituted notice of theinfringement. Thus, in Baxter II, Spectramed was held liable for infringementdamages as to the McCord patent only for the period after receiving notice. Thefact that the patent was issued and in existence in 1985, after which Gould'sproduct infringed that patent, established a "claim" for infringement andtherefore constituted an "event" from which a claim could be made or a suitbrought, pursuant to section 2.04(b). Accordingly, Gould must indemnifySpectramed for expenses incurred as a result of defending the suit broughtregarding the McCord patent. Pursuant to section 6.05, however, Gould is notliable for actual infringement damages incurred by Spectramed after Spectramed'sreceipt of notice. See 35 U.S.C.A. sec. 287(a) (Supp. 1997).

Notice of the Wallace patent, issued on September 9, 1986, was received onOctober 3, 1986, one week before the closing. In Baxter I, Spectramed was foundliable for infringing the patent during the period after the issuance of the 1988reexamination certificate. The fact that Spectramed ultimately was successfulin avoiding liability for the period preceding the issuance of the reexaminationcertificate, however, did not relieve Gould of its section 2.04(b) obligation to"pay any debt, obligation or liability" arising from "a claim made or a suitbrought" before the closing date, here, the legal expenses incurred by Spectramedin challenging that claim.

Gould was not liable, however, for infringement damages after thereexamination certificate was issued. During reexamination proceedings, thepatent owner may amend its patent claim and propose new claims. 35 U.S.C. sec.305 (1984). When a patent owner amends its claims, "[t]he original claims aredead" (unless it is identical to the amended claim), and "an infringer'sliability commences only from the date the reissue patent is issued." SeattleBox Co. v. Industrial Crating & Packing Inc., 731 F. 2d 818, 827 (Fed. Cir.1984). See also Fortel Corp. v. Phone-Mate, Inc., 825 F. 2d 1577, 1580 (Fed.Cir. 1987) (quoting Seattle Box).

Spectramed claims the law regarding reexamination was new and unclear atthe time it entered into the Asset Purchase Agreement, and should not becontrolling in this case. These rules of law, however, were in effect at thetime of the closing. Statutes and laws in existence at the time a contract isexecuted are considered part of the contract; it is presumed that the partiescontracted with the knowledge of existing law. Braye v. Archer-Daniels-MidlandCo., 175 Ill. 2d 201, 217, 676 N.E.2d 1295 (1997).

The portion of the reexamination certificate listing the amended claims,which were different from the original claims, and which Spectramed was accusedof infringing in Baxter I, established a new claim for infringement by the patentowner and eviscerated the previous claims in the 1986 patent. The 1988certificate served as notice of the new infringement claim. Although Gould wasresponsible for indemnification regarding Spectramed's legal defense of both the1986 and 1988 claims pursuant to section 2.04(b), it was not liable forinfringement damages incurred by Spectramed after the issuance of the 1988Wallace certificate.

Spectramed argues that it should not be penalized for electing to pursuean administrative proceeding instead of suing the patent owner in federal court,where there would be no opportunity to amend the patent claims. Spectramed,however, chose the legal forum for its dispute after receiving advice from twoseparate patent law firms, with full knowledge of the terms of the Agreement, thepotential for amending patent claims in reexamination proceedings, and the legalconsequences of the amendments. It cannot now argue that it should be rescuedfrom the consequences of its decision.

Gould next contends that Spectramed cannot recover under section 2.04(b)because it failed to notify Gould promptly when it received notice of the patentinfringement claims. The prompt notification requirement can be found in section6.03 of the Agreement, which pertains to the Agreement's indemnificationprovisions, not section 2.04(b). Moreover, the delays in giving notice were notunreasonable, and Gould was not prejudiced by the timing of Spectramed'snotification. Spectramed informed Gould of a potential claim under the Wallacepatent before taking any decisive action other than seeking legal advice andmeeting with the patent's owners to determine if further action was necessary. Spectramed also informed Gould almost immediately after receiving the Baxter Icomplaint, and before it was required to file its answer. Spectramed furthernotified Gould of the filing of the Baxter II complaint before taking action. Gould repeatedly declined to participate in these proceedings.

Lastly, Gould insists that Spectramed waived reliance on section 2.04 byfailing to mention that provision in its correspondence with Gould, and shouldbe estopped from raising that issue in this case. Gould's argument must fail inlight of evidence that Spectramed notified Gould of the pending claims numeroustimes, repeatedly asserted that Gould was responsible under the Agreement todefend the Baxter claims and resulting damages, and referenced the Agreement whencommunicating with Gould.

II Spectramed next argues that Gould was liable as a matter of law forbreaching the following warranties, found in section 4.07 of the Agreement: (1)Gould owned or had the right "to use without payment to or interference from anyother party all inventions, processes, know-how, formulae, trade secrets, [and]patents ***"; (2) "no other inventions, processes, know-how, formulae, tradesecrets, [or] patents *** are necessary for the conduct of the business of"Spectramed; (3) "[s]uch inventions, processes, know-how, formulae, trade secrets,[and] patents *** are not currently being challenged in any way and are notinvolved in any pending (or, to the knowledge of Gould, threatened) interferenceor opposition action or proceeding and do not *** infringe upon or conflict withany patent ***."

In contrast to sections 2.04(b) and 6.05 of the Agreement, the language ofsection 4.07 does not limit the applicability of the provisions to circumstancesexisting at the time of closing. It is unclear, however, whether the partiesintended for Gould to be liable under section 4.07 for warranty breaches thatoccurred after the closing date of the Agreement. Evidence in the record,including the correspondence between Spectramed and Gould, further presentgenuine issues of material fact regarding the scope of Gould's liability undersection 4.07, making entry of summary judgment improper.

Gould contends that Spectramed cannot recover for breach of warranty,citing Hillier's receipt of the October 3, 1996, letter from Utah Med regardingthe Wallace patent. Gould asserts that because Spectramed, through Hillier,received notice of the potential patent infringement claim before the closing,Spectramed cannot prove that it relied upon section 4.07. A party's knowledgeof a contract's deficiencies may result in waiver of the contract's warranties. Harrington v. Kay, 136 Ill. App. 3d 561, 483 N.E.2d 560 (1985). The lawtherefore requires that parties prove they actually relied on the warrantyprovisions, but does not require proof that such reliance was reasonable. Regopoulos v. Waukegan Partnership, 240 Ill. App. 3d 668, 674, 608 N.E.2d 457(1992).

In the present case, evidence in the record establishes that the Wallaceletter was addressed to Hillier in his capacity as a Gould officer, althoughHillier also was working on behalf of Spectramed at that time. Hillier was notinvolved in the contract negotiations with Gould and, although there is evidencethat he mentioned the letter to Aplin, the record is silent as to whether Aplinknew of the letter before negotiating the closing. Even if Aplin did know of theletter, it is unclear whether, at the time of closing, he knew the letterprovided the basis for asserting an infringement claim. The facts presentedraise questions for the trier of fact regarding whether Spectramed actuallyrelied on the warranties at the time of closing, which are not amenable tosummary judgment.

Gould further contends that Spectramed is precluded from recovery becauseit failed to mitigate its damages, as required by section 6.05 of the Agreement,and waived some of its arguments pertaining to section 4.07 by failing to timelyraise those claims, also required by section 6.05. As previously shown, section6.05 limits the scope of the indemnity provision found in section 6.01. Section6.05 does not apply to breach of warranty claims in addition to indemnity claims,nor does language elsewhere in the Agreement provide for such warrantylimitation. Section 6.05, therefore, does not preclude Spectramed from raisinga breach of warranty claim.

III Lastly, Spectramed asserts that the circuit court erred in granting summaryjudgment on its estoppel claim. Spectramed argued before the circuit court thattwo letters written by Gould and Spectramed modified the original terms of theAgreement.

Spectramed based this claim on Gould's February 5, 1987 letter, respondingto Spectramed's claim that Gould was responsible for Spectramed's defense toallegations of patent infringement by the owner of the Wallace patent. In aDecember 1986 letter sent to Gould, Spectramed notified Gould of the patentinfringement claim pursuant to section 6.03 of the Agreement. Spectramed furtherstated:

"At the present time, in order to mitigate whateverlosses, damages and expenses which there may be, ifany, Spectramed, Inc. intends to continue tomanufacture and sell the products containing thealleged infringing features. However, under Section6.05 of the Asset Purchase Agreement, there is aprovision which limits the ability of Spectramed, Inc.to recover any losses, damages or expenses incurredafter receipt of a notice of infringement. Since themitigation which would result from continuing tomanufacture would inure to the benefit of Gould Inc.,Spectramed, Inc. believes that Gould Inc. should alsobear whatever losses, damages or expenses that may beincurred after receipt of the Notice. If Gould Inc.believes to the contrary, Gould Inc. should immediatelynotify Spectramed, Inc."

Gould responded to this letter by asserting:

"While, we agree with your interpretation of Section6.05 of the Asset Purchase Agreement in respect toSpectramed's continued manufacture and sale of certainSpectramed products existing as of October 10, 1986 ***,we do not agree that such interpretation would apply toany modification of these products (or any new products)which might also be charged to be an infringement of the[Wallace patent]."

The Spectramed letter expresses its intent to continue to sell thetransducers despite the potential infringement claim under the Wallace patent,in an attempt to mitigate its potential damages. The letter also acknowledgesthe section 6.05 indemnification limitation, and seeks Gould's agreement to amodification of the Agreement in which Gould would accept liability for futurelosses, as any mitigation of damages would benefit both parties. In itsresponse, Gould expresses its agreement with portions of Spectramed's letter, butstates that it would not agree to the continued sale of transducers that weremodified after the closing.

The parties' modification of the Agreement renders Gould liable for post-notice damages resulting from infringement of the 1986 Wallace patent. Gouldargues that the patent was not infringed, and therefore, there were noinfringement damages to charge to Gould. Gould further asserts that the damagespaid by Spectramed resulted from the infringement of the patent that was issuedin 1988 as a consequence of the reexamination proceedings. NotwithstandingGould's assertion that it did not agree in the February 5, 1987, letter to beliable for any damages resulting from the issuance of the second Wallace patentor the McCord patent, Gould's interpretation of its own letter strains logic. Gould's letter clearly evinces its concurrence with Spectramed's intent tocontinue the manufacture and sale of the existing products. The only caveat toGould's agreement with Spectramed's plan to mitigate potential damages was thatSpectramed's modification of the products would absolve Gould of any liability. Accordingly, despite section 6.05's limitation on damages after receipt ofnotice, Gould must indemnify Spectramed for both the litigation expenses indefending the pre-closing claims, but also must indemnify Spectramed for thepost-notice infringement damages.

For the foregoing reasons, the circuit court's order granting summaryjudgment on counts I, II and III of Spectramed's complaint is reversed andremanded for further proceedings in consonance with the views set forth in thisopinion.

Reversed and remanded.

HOURIHANE, P.J., and THEIS, J., concurring.