Flooded litigation hurts the economy and costs businesses millions.

Consider the position of a business executive in such a circumstance. His [Their] own highly paid lawyers cannot tell him [them] with realistic probabilities, much less any kind of certainty, whether the particular product infringes the patent in question. Therefore, the business leader is unable to make secure judgments about what steps he [they] should take and faces compounded dangers. He [They] faces not only the unpredictability of the litigation process from the standpoint of its ultimate outcome, but also from the standpoint of how long it will take, how much it will cost, and how much disruption company employees will suffer in the process of discovery, trial preparation, and trial. Whether a given case from start to finish will take two, four, six, or eight years is very difficult to assess. Similarly, whether it will cost half a million, a million, two million, or four million dollars may be equally hard to predict and depends on many variables. Such variables include the judge in question, the number of cases on that judge’s docket, the nature and complexity of the case, the number of patents being asserted, the tactics of the opposition, the relative strength of the companies, and many additional factors. The essential reality for the business leader, however, is that he [they] is facing a process that can be enormously expensive, disruptive, entirely uncontrollable, and unpredictable. Therefore, it is likely that as business leaders become more aware of such risks and uncertainties, they will insist on arbitration clauses, or other such contractual provisions, in an attempt to avoid the risk of becoming victims of the uncertainties of the U.S. litigation process.49