2. Patents are more uncertain.

It has been asserted that some startups are sued because they are "simply bona-fide infringers who carelessly failed to conduct the rudimentary patent due- diligence prior to entry."180 Yet the difficulty of doing so should not be underestimated. In the majority of technological fields, the uncertainty inherent in the patent system renders accurate evaluation of infringement at the outset of a project impracticable.181 As one data point, one study examined software patent data and extrapolated that it would require "two million patent attorneys, working full-time, to compare every firm's products with every [software] patent issued in a given year" and that "[a]t a rate of $100 per hour, that would cost $400 billion."182 Because of the uncertainty of claim construction, a final analysis of even a single patent claim cannot be performed with absolute certainty. Rather, whether a new product incorporates another’s invention is rarely ascertainable until trial and appeal are complete, with the attendant that ranges up to over a million dollars.183 This is because patent claims lack the necessary clarity for authoritative guidance.184 Unlike a deed of land, patent claims are drafted using language to attempt to capture new concepts and sometimes “the nature of language makes it impossible to capture the essence of a thing in a patent application.”185 Virtually every infringement occurs because the meaning of patent claims are “inherently indeterminate” and “patent attorneys seize on such indeterminacy to excuse infringement or to expand their client's exclusive rights.”186 Where the stakes are high for either party, the claim text is parsed, or then the court’s interpretation of the terms are re-parsed, until a court of appeals determines the issue on review.187

Unlike real property rights, patent claims capture intangible rights that have proven difficult to ascertain with any certainty.188 It can be impossible to ascertain whether a particular implementation is infringing until after trial and appeal.189 As one source concludes, "claim construction may be inherently indeterminate: it may simply be impossible to cleanly map words to things."190 Under these circumstances, a startup cannot ascertain whether a license is necessary without undertaking the substantial expense, disruption and delay of litigation. The problem is particularly acute in all technology sectors, with the exception of claims that disclose a particular chemical or genetic structure.191 A startup that is developing and planning technological innovation faces a task fraught with risk. This circumstance introduces uncertainty, the potential for large cash expenditures and the potential for a shut down injunction after a product launch.192