Patent litigation is bad for small firms---it’s time consuming, expensive, and there’s lots of bias.

Even without the problem of a multi-jurisdictional dispute, litigating patents in the court system can be time consuming and expensive. Courts are pressured to deliver timely judgments. At the same time masses of evidence and rigid procedures mean that there is a limit as to how fast a case can progress. This is further complicated by the fact that in America juries are often used to consider issues of fact. Patent issues are often highly technical and may be difficult for most jurors to comprehend. As of 2000, about fifty percent of all U.S. patent cases were tried before juries. Evidence suggests that juries tend to favour patentees on validity issues more than judges. This perceived bias in the system may influence some companies to prefer litigation, but there are other important facts to consider as well. Firms that are financially better off than their rivals may opt to litigate in order to intimidate smaller firms that may not have the resources to engage in a protracted legal struggle. Indeed, there may be no overt threat, but a clear financial imbalance would likely cause the weaker party to question the effectiveness of litigation. Evidence of this observation is difficult to quantify, but some authors have suggested that patent arbitration usually takes place between companies of similar financial standing. Crosslicensing relationships may suggest a relative parity in economic terms. As an example, the National Patent Board was founded by large U.S. firms to replace litigation with ADR. With these considerations in mind, some authors have called for compulsory arbitration of patent disputes. While this may be an extreme contention, arbitration could be appreciated as-if not leveling the field of play-at least putting the variables within the control of the parties to the dispute.