Jesse.
Six things, in order
- Confirm the real response deadline from the court record. In federal court a response to a complaint is generally due 21 days after service, and that date moves with a waiver of service or an agreed extension. It is specific to your court and your case, so it gets confirmed from the docket rather than from the letter or from a website.
- Suspend routine automatic deletion. Anything touching the accused product: email, chat, tickets, design files, source control, the retention rule that quietly clears mailboxes on a schedule. Courts treat destroyed evidence far more seriously than they treat an inconvenient document.
- Call whoever handles the business insurance. Some commercial policies cover intellectual property defense, and notice given late can forfeit coverage that was there all along. The call takes an afternoon and costs nothing.
- Keep the speculation off email. An engineer's honest guess this week about whether the product might infringe becomes an exhibit later. Questions about the patent go to counsel, not into a thread.
- Gather four things in one place. The asserted patent numbers. Everything received, with the date each item arrived and how. A plain written description of how the product actually works. And the names of the two or three people who genuinely built it.
- Interview more than one lawyer. Even if the first conversation goes well. Especially then.
- You
- There is no lawsuit yet. Just a letter. Does any of that still apply?
- Jesse
-
Most of it. A demand letter carries no court deadline, which is its own kind of pressure, because nothing forces the question and weeks disappear. It does start real obligations, and preserving documents is the first of them.
What a letter also does is open a range that runs from a license negotiation to a lawsuit. Which end of that range you land on is affected by what happens in the next month, and a fast reply written to sound reasonable is usually a concession nobody decided to make.
- You
- Should we have someone write up an analysis of whether we infringe, so we are ready?
- Jesse
- Not on your own initiative this week, and not over email. There are protected ways for a company to get that analysis and unprotected ways, the difference matters enormously later, and the unprotected version is the one that gets written by a well-meaning person on a Tuesday afternoon. Ask counsel how to do it before doing it.
- You
- Honestly, how frightened should I be?
- Jesse
- Being sued is not a finding of anything. A complaint is one side's allegation, companies of every size receive them, and most patent disputes end in a negotiated resolution rather than a trial verdict. The week feels like the whole thing is happening at once. It is not. It is a long process with a small number of decisions in it that actually matter, and none of those is due on Monday.
He kept us fully informed at every stage, explained complex issues in understandable terms, and always prioritized our best interests with the utmost ethical standards.
- You
- What do I ask the lawyers I talk to?
- Jesse
- Ask the same six questions to each of them and write down the answers. The differences will be obvious by the third call, and the last question tells you more than the first five.
Six questions worth asking any patent lawyer
- Can you understand our technology at the level it was built, or will you depend on an expert to translate it for you?
- Will you read the patent's full prosecution history yourself?
- Can you explain what this means for the business in language our board can use?
- How will you explain this technology to a judge or a jury who has never seen it?
- What would you decline to spend our money on?
- How do you create pressure without letting the cost run away?
Before acting on any of it
Everything above is general information about how these matters usually run. It is not legal advice, it is not tailored to your situation, and reading it does not create an attorney-client relationship with anyone.
Deadlines, preservation duties and insurance terms vary by court, by case and by policy. Confirm yours with a lawyer who has read your documents.
Please do not send confidential information through this site. Legal and professional inquiries should go through Practus, LLP.