only the most sturdy of potential litigants should enter the arena. Unlike patent litigation in many foreign nations, the primary factor of who wins and who loses is largely governed by the following factors, in descending order.

(1) the "character" or guttiness of the respective parties, (2) the ability of each of the parties to handle large invoices month after month and avoid artificial constraints in the administration of the litigation, (3) the quality of counsel, (4) the favorability or lack of favorability of the facts, and last, (5) the law itself. The federal courts, on a case-by-case and judge-by-judge basis, can materially decrease or increase the cost and complexity of litigation. Because of the heavy investment of the federal courts in their time in patent cases relative to other cases, many judges have frequent status conferences and hearings, and often force the parties into mediation.

"Markman trials" occurring sometime before the close of discovery determine the interpretation and scope of claims. With this decision, the power of the jury in patent cases has largely diminished, as the Court in the pre-jury "Markman trial" hears the experts argue over interpretation of the prior art, file wrapper estoppel, and even infringement arguments.

If the Markman hearing is "won" by the patentee, it is inevitably followed by serious settlement negotiations or by a Motion for a Preliminary Injunction.