The envelope is open and the instinct is to do something large. Everything actually worth doing in the next seven days is small, and none of it requires knowing yet whether the claim has any merit.
None of it wins the case. Two or three of them prevent avoidable damage, and one of them may move the cost of the defense to an insurer you are already paying.
Confirm the real date
In federal court a response to a complaint is generally due twenty one days after service. That date moves with a waiver of service and with extensions, and it belongs to your particular court and your particular case, so the number in a paragraph like this one is a starting point and not an answer.
Take the date from the documents themselves rather than from memory, from a colleague, or from the person who forwarded the email. Write it down along with the date each document was received and by whom. A missed response deadline is one of the few ways to lose a case you might otherwise have won.
Stop the automatic deletion
Most companies quietly destroy email and files on a schedule that nobody thinks about. That schedule has to stop for anything touching the accused product: design documents, source control, test results, supplier correspondence, sales material, the messaging channel where the engineers argue.
Courts treat this seriously, and it is one of the few early mistakes that can hurt a company on its own, independently of whether the product infringed anything. Tell the people who administer the systems, in writing, this week.
Call the insurance broker
Some business policies cover intellectual property defense and some do not. The important part is that late notice can forfeit coverage that has already been paid for, which means a phone call made in week one is worth more than the same call made in month three.
Ask the broker to look at every policy, not only the one that seems relevant. Asking costs nothing and the answer is occasionally the best news of the month.
Keep the speculation off email
The natural first move is to circulate the complaint with a paragraph of opinion attached. Written guesses about whether you infringe, made by people who have not read the claims and are not lawyers, have a way of reappearing later in a setting nobody would have chosen.
Have that conversation out loud, in a room, and keep it short until counsel is involved.
Gather the dull material
Whoever you hire will ask for all of this in the first substantive conversation. Having it ready is worth a week of calendar.
- The asserted patent numbers, taken from the complaint or the letter.
- Everything received so far, with the date each item arrived and how.
- A plain description of how your product actually works, written by someone who built it.
- Who built it, when it first shipped, and what has changed in it since.
- Anything already on hand about others working in the same area, including older products and publications.
Interview more than one lawyer
The comparison teaches you more about your own case than any single conversation will, and the differences between the answers are usually the most honest information available to you. These are the questions worth asking each of them.
- 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?
Listen for specifics. The last two questions are the ones that separate answers, because pressure and cost genuinely pull against each other and anyone who says otherwise is selling.
One thing worth holding on to
A complaint is one side's allegation, written by the side that wants to win. It is not a finding of anything. Most patent disputes end in a negotiated resolution rather than a trial verdict, and companies of every size receive these documents, including companies that turn out to have done nothing wrong.
This is general information about a situation many companies find themselves in. It is not legal advice about yours, and reading it does not create an attorney-client relationship. Deadlines, preservation obligations and insurance terms differ by court, by case and by policy, and only a lawyer who has read your documents can tell you what applies to you. Please do not send confidential information through this site or by email before an engagement is in place.
Read these recommendations in full on LinkedIn, where they were written, or read all seven here.