Switched to Gallium from a larger firm and the difference has been massive. They offer much better service at much more manageable prices. If you are looking for fast efficient help with anything IP related, these are the guys for the job. Trademarks, Patents, Copyrights, these guys know what they are doing. They are my third lawyers I have worked with and the experience has been substantially better than the prior two.
Table of Contents
Connor Hance
August 2025
Anna Wengreen
August 2025
Nelson Lim
August 2025
Mike Lee
May 2025
Shawn
May 2025
Robert Paul
August 2024
Ryan Balko
September 2024
Daniel Bakke
August 2024
Gideon Eden
July 2023
David Morse
March 2024
Brady Hatcher
April 2023
Eric Wengreen
December 2022
Ashley Mooneyham
February 2022
Legal Disclaimer: This article provides general information about patent infringement litigation for educational purposes only. It is not legal advice and should not be relied upon as such. Every case is unique and fact-specific. You should consult with a qualified patent litigation attorney about your specific situation. Reading this article does not create an attorney-client relationship with Gallium Law.
You’ve just been served with a patent infringement lawsuit. Your heart is racing, your mind is spinning with questions, and you’re wondering what happens next. Whether you received the complaint by certified mail, email, or through a process server, one thing is clear: you need to act quickly and strategically.
Getting sued for patent infringement is one of the most stressful experiences a business owner or company executive can face. The lawsuit threatens not just your current operations but potentially your entire business model, your relationships with customers, and your financial future. The actions you take in the next 21 days can significantly shape the trajectory of your case.
At Gallium Law, we guide defendants through patent infringement litigation from the initial shock of service through final resolution. This comprehensive guide provides a clear, actionable plan for the critical first three weeks after you’ve been sued.
Understanding What Just Happened
A patent infringement lawsuit is a federal civil action claiming that you or your company have made, used, sold, or offered to sell a product or service that falls within the scope of someone else’s patent rights. The plaintiff is alleging that you’ve violated their federally-granted monopoly right to their invention.
The Documents You Received
Your lawsuit package typically includes several critical documents. The complaint outlines the plaintiff’s allegations, identifies the patent(s) at issue, describes how your products allegedly infringe, and states the relief the plaintiff seeks. The summons is the official court document that notifies you of the lawsuit and the deadline to respond (typically 21 days from service). You may also receive the patent(s) themselves, which are the actual patent documents the plaintiff claims you’re infringing.
Why Time Is Critical
You have 21 days from the date you were served to file a response with the court. Missing this deadline can result in a default judgment against you, meaning you automatically lose without ever presenting your defense. Even if you plan to fight the lawsuit vigorously, this deadline is absolute and unforgiving.
However, the 21-day response deadline is just the beginning. The actions you take during these first three weeks will set the trajectory for your entire case, influence your defense options, and significantly impact your legal costs.
Day 1-2: Emergency Response Actions
The moment you receive the lawsuit, certain actions should happen immediately. These first 48 hours are critical for preserving your rights and building the foundation for your defense.
Read the Complaint Thoroughly
Resist the temptation to skim the complaint in panic and then set it aside. Instead, read through the entire document carefully, even though the legal language may be unfamiliar. As you read, identify which specific patent(s) you’re accused of infringing (usually listed with patent numbers), which of your products or services are identified as infringing, what the plaintiff is asking for in terms of monetary damages, and whether the plaintiff seeks an injunction to stop you from selling your products.
Pay particular attention to any allegations of willful infringement. Willful infringement occurs when a defendant knew about the patent and infringed anyway, and it can lead to enhanced damages of up to three times the actual damages. If the complaint alleges willfulness, your case just became significantly more serious.
Consider Document Preservation
From the moment you’re served with a lawsuit, you typically have a legal obligation to preserve all documents and communications that might be relevant to the case. This obligation, called “litigation hold,” means you generally cannot delete, destroy, or alter any potentially relevant materials.
Consult with an attorney as soon as possible about implementing appropriate document preservation procedures. Your attorney can help you identify which materials should be preserved and establish proper protocols, which may include instructing employees, contractors, and relevant parties to preserve documents, emails, text messages, and communications related to the accused products, development of the accused products, any knowledge of the plaintiff’s patent, communications with the plaintiff or about the plaintiff, and sales and revenue data for the accused products.
Failure to preserve documents can result in severe sanctions from the court, including adverse inference instructions (where the jury is told to assume destroyed documents would have been harmful to your case) or even default judgment. Work with counsel to implement appropriate preservation measures promptly.
Check Your Insurance Coverage
Many businesses carry insurance policies that may provide coverage for patent infringement lawsuits, but many business owners don’t realize they have this coverage. Pull out all your business insurance policies and look for provisions covering intellectual property claims, advertising injury, or business litigation.
Common policy types that may provide coverage include commercial general liability policies (which sometimes cover IP claims under “advertising injury” provisions), directors and officers liability insurance, errors and omissions insurance, and specific intellectual property insurance. Contact your insurance broker or carrier immediately to report the claim. Most policies require prompt notice, and delaying notification could jeopardize your coverage.
If you do have coverage, your insurance company may provide or pay for your legal defense, substantially reducing your out-of-pocket legal costs.
Day 3-5: Assembling Your Legal Team
Patent litigation is highly specialized. While your general business attorney may be excellent in their practice area, patent infringement defense typically requires specific expertise in both patent law and federal court litigation procedures.
What to Look for in Patent Litigation Counsel
When evaluating potential attorneys, focus on specific patent litigation experience defending patent infringement cases, experience with the specific technology involved in your case, familiarity with the court where your case was filed, and a track record of favorable outcomes for defendants.
Ask potential attorneys about their experience with cases similar to yours, their approach to defense strategy, their fee structure and estimated costs, and their availability and ability to meet your response deadline. Patent litigation can be expensive, and understanding fee structures upfront is essential. Your attorney can discuss the likely costs for your specific situation during your consultation.
The Initial Consultation
Most patent litigation attorneys will offer an initial consultation, often at no charge or reduced cost, to evaluate your case. Bring the complaint, summons, all patent documents you received, information about your accused products, any prior communications with the plaintiff, and your business insurance policies to this meeting.
Use the consultation to assess not just the attorney’s qualifications but also whether you can work effectively together. Patent litigation can last months or years, and you need an attorney you trust and can communicate with clearly.
Day 6-10: Building Your Defense Foundation
Once you’ve retained counsel, the next phase focuses on gathering information and developing your defense strategy.
Product and Technology Analysis
Your attorneys will need to understand exactly how your products work and whether they actually practice the elements claimed in the plaintiff’s patent. This technical analysis is fundamental to your defense.
Gather all technical documentation, including product specifications and schematics, source code or design files, manufacturing documentation, marketing materials, and development history and records. If you have in-house engineers or product developers, they’ll likely need to work closely with your attorneys to explain how your products function.
Your attorneys may also recommend hiring a technical expert to analyze your products and the patent claims. Expert witnesses are often crucial in patent cases to help explain complex technology to judges and juries.
Prior Art Research
One of the most powerful defenses in patent litigation is proving that the plaintiff’s patent is invalid because the claimed invention was already known or obvious. This involves finding “prior art” – earlier patents, publications, products, or public disclosures that show the invention wasn’t new or wasn’t inventive.
Your attorneys may recommend hiring a prior art search firm to conduct a comprehensive search of patents, publications, and products that existed before the plaintiff’s patent was filed. Finding strong prior art can completely change the dynamics of your case, potentially leading to dismissal or favorable settlement.
Think about whether you or your employees were aware of any earlier products, technologies, or publications related to the patented invention. Your institutional knowledge may point to prior art that formal searches might miss.
Reviewing Plaintiff’s Litigation History
Research the plaintiff to understand who you’re dealing with. Some plaintiffs are operating companies that develop and sell products. Others are primarily in the business of patent licensing or enforcement, sometimes called non-practicing entities or patent assertion entities.
Understanding the plaintiff’s business model, litigation history, and typical settlement patterns can inform your defense strategy. Plaintiffs who have successfully enforced their patents in previous cases present different challenges than those with weak litigation records or patents that have been repeatedly challenged.
Your attorneys can research the plaintiff’s litigation history through public court records and databases. This research often reveals valuable insights into the plaintiff’s litigation tactics, typical settlement demands, and weaknesses in their patents or enforcement strategy.
Day 11-14: Developing Your Defense Strategy
With information gathered and your legal team in place, it’s time to develop a comprehensive defense strategy. Patent infringement cases typically involve multiple potential defenses that can be pursued simultaneously.
Non-Infringement Defenses
The most straightforward defense is proving that your products simply don’t infringe the patent claims. Patent claims are written in precise legal language, and infringement requires that your product practices every element of at least one patent claim.
Your attorneys will conduct a detailed claim construction analysis to determine what the patent claims actually cover. This process involves analyzing the patent’s language, the specification, and the prosecution history (the record of communications between the patent applicant and the Patent Office).
If your products don’t practice even one element of any claim, you don’t infringe. This defense requires careful technical and legal analysis but can result in complete victory without challenging the patent’s validity.
Invalidity Defenses
Even if your products do infringe, you can defend by proving the patent is invalid. Patents can be invalid for many reasons, including that the invention was already known (lack of novelty), the invention would have been obvious to someone skilled in the field, the patent specification doesn’t adequately describe the invention, or the patent claims are indefinite or unclear.
Invalidity defenses often rely on prior art – evidence that the invention was already known or used before the patent was filed. Strong prior art can completely invalidate a patent, eliminating the infringement threat not just for you but for anyone else the plaintiff might sue in the future.
Unenforceability Defenses
Patents can be unenforceable due to misconduct during the patent application process. The most common unenforceability defense is inequitable conduct, where the patent applicant intentionally misled or failed to disclose material information to the Patent Office.
Proving inequitable conduct is difficult and requires clear and convincing evidence of both material misrepresentation and intent to deceive. However, when successful, this defense renders the entire patent unenforceable, not just against you but against everyone.
Licensing and Prior Use Defenses
In some cases, you may have defenses based on prior licensing agreements, exhaustion of patent rights, or prior use. If you purchased products from an authorized source, the patent owner’s rights may be “exhausted” and they cannot sue you for resale or use of those products.
If you were using the technology before the patent was filed, you may have prior user rights that allow you to continue. These defenses depend heavily on specific facts and timing.
Day 15-18: Exploring Settlement and Alternative Paths
While building your defense, you should also explore whether settlement makes sense. Not every lawsuit needs to proceed to trial, and early settlement can sometimes save substantial time and money.
Understanding Settlement Dynamics
Patent litigation settlements can take many forms. A licensing agreement allows you to continue selling your products while paying royalties to the plaintiff. A lump sum payment resolves the case completely without ongoing obligations. A covenant not to sue provides protection from future litigation without admitting infringement. Design-around agreements involve modifying your products to avoid infringement and resolving the lawsuit.
Your willingness to consider settlement should depend on the strength of your defenses, the likelihood of success at trial, the cost of litigation versus settlement amount, the impact on your business operations, and the plaintiff’s reputation and litigation history.
Some plaintiffs file lawsuits primarily to extract nuisance settlements and will accept relatively small amounts to resolve cases quickly. Others are committed to extensive litigation and will only settle on favorable terms. Understanding who you’re dealing with helps you evaluate settlement realistically.
The Strategic Timing of Settlement Discussions
Early settlement discussions can sometimes resolve cases before substantial legal costs accumulate. However, you need enough information about the case to evaluate settlement intelligently. Settling too quickly may mean paying more than necessary, while waiting too long means accumulating legal fees that reduce the benefit of eventual settlement.
Many cases resolve after key case events like the claim construction hearing (where the court interprets the patent claims) or after fact discovery is complete. These events provide information that helps both sides evaluate the strength of their positions more accurately.
Your attorney should advise you on optimal timing for settlement discussions based on the specific circumstances of your case.
Alternative Dispute Resolution
Some courts require or encourage alternative dispute resolution (ADR) methods like mediation or arbitration. Mediation involves a neutral third party who helps both sides negotiate a settlement but doesn’t impose a decision. Arbitration involves a neutral decision-maker who hears evidence and makes a binding decision, similar to a trial but typically faster and less formal.
ADR can sometimes break settlement logjams and resolve cases more efficiently than full litigation. However, ADR still requires preparation and strategy, and you should approach it with the same seriousness as court proceedings.
Day 19-21: Filing Your Response
With your 21-day deadline approaching, you and your attorney must file a formal response to the complaint. The type of response depends on your defense strategy and the specific circumstances of your case.
Answer
The most common response is an answer, which admits or denies each allegation in the complaint and asserts your affirmative defenses. The answer preserves all your defenses and allows the case to proceed to discovery.
Your answer must respond to each numbered paragraph in the complaint, specifically admitting, denying, or stating insufficient knowledge to admit or deny each allegation. It must also assert any affirmative defenses you plan to raise, such as invalidity, non-infringement, unenforceability, or statute of limitations.
Motion to Dismiss
In some cases, your attorney may recommend filing a motion to dismiss instead of or in addition to an answer. Motions to dismiss argue that even if all the plaintiff’s allegations are true, they haven’t stated a valid legal claim.
Motions to dismiss are less common in patent cases than in other types of litigation but can be appropriate when the complaint has significant legal deficiencies. Common grounds for dismissal include lack of personal jurisdiction, improper venue, failure to state a claim, or patent ineligibility under recent Supreme Court decisions.
Extension Requests
If you need additional time to respond, your attorney can typically negotiate a brief extension with the plaintiff’s counsel or request one from the court. Courts often grant reasonable extensions, especially for initial responses, but you should request extensions as early as possible and have a good reason.
Never assume you have extra time without formally obtaining an extension. Missing the response deadline can result in default judgment, which is extremely difficult to reverse.
Understanding Common Defense Strategies
Patent infringement defense requires both legal expertise and strategic thinking. Understanding common defense approaches helps you work effectively with your counsel and make informed decisions.
The Invalidity Campaign
Many defendants focus heavily on proving the patent invalid. This strategy involves extensive prior art research, expert analysis, and potentially filing an Inter Partes Review (IPR) with the Patent Trial and Appeal Board (PTAB), a faster and less expensive proceeding for challenging patent validity.
The invalidity approach has several advantages. If successful, it eliminates the infringement threat completely. It can apply pressure on the plaintiff to settle reasonably. Strong invalidity positions can sometimes lead to early case resolution.
However, invalidity is not guaranteed, requires substantial expert and research costs, and patents are presumed valid, requiring clear and convincing evidence to overturn.
The Non-Infringement Defense
Arguing non-infringement focuses on showing that your products simply don’t practice the patent claims. This defense requires detailed technical analysis and often hinges on claim construction, the court’s interpretation of what the patent claims actually mean.
Non-infringement defenses can be powerful when your products differ from the invention in meaningful ways. However, they require careful technical and legal analysis to execute effectively.
The Prior User Defense
If you were using the technology before the patent was filed, you may have prior user rights under 35 U.S.C. § 273. This defense is limited and requires that you were commercially using the technology at least one year before the patent’s filing date.
Prior user rights don’t invalidate the patent but provide you with a personal defense to continue your operations. This can be a powerful defense for established businesses that developed their technology independently.
Navigating the Broader Business Impact
A patent lawsuit affects more than just legal proceedings. It impacts your business operations, customer relationships, and strategic planning.
Customer Communications
You’ll need to decide how to communicate with customers about the lawsuit. Some customers may receive notice of the lawsuit from the plaintiff or may have concerns about continued supply of your products.
Develop a clear, consistent message about the lawsuit that reassures customers without making statements that could be used against you in litigation. Your attorney should review any public statements about the case before you make them.
Business Operations Decisions
Consider whether to continue selling the accused products during litigation. In most cases, you can continue operations unless the court issues a preliminary injunction (which is relatively rare). However, continuing to sell products found to infringe at trial can increase your damages exposure.
Balance the risk of increased damages against the business necessity of continuing operations. This decision should consider the strength of your defenses, the likelihood of preliminary injunctive relief, the importance of the accused products to your business, and the availability of design-around alternatives.
Product Development Alternatives
Even while defending the lawsuit, consider whether you can develop alternative products that clearly don’t infringe the patent. Having a “design-around” product in development gives you flexibility and can strengthen your settlement position.
Design-arounds should be developed with input from patent counsel to ensure they truly avoid infringement. Products that merely make superficial changes may still infringe, while thoughtful engineering can create new products that clearly fall outside the patent’s scope.
Common Mistakes Defendants Make
Understanding common pitfalls helps you avoid mistakes that can seriously harm your case.
Destroying Documents
Once you’ve been sued, avoid destroying documents related to the case, even documents you think are harmful to your position. Document destruction can result in severe sanctions, including adverse inference instructions or default judgment.
If you’re concerned about particular documents, discuss them with your attorney. There may be appropriate ways to handle sensitive materials, but your attorney should guide those decisions.
Communicating Without Attorney Review
Don’t communicate with the plaintiff, their attorneys, or the court without your attorney’s knowledge and approval. Statements you make can be used against you, and even well-intentioned communications can create legal problems.
All communications about the lawsuit should go through your attorney. This protects attorney-client privilege and ensures your statements don’t inadvertently harm your case.
Ignoring the Business Impact
Some defendants get so focused on the legal battle that they ignore the lawsuit’s impact on their business operations, customer relationships, and strategic planning. The lawsuit is a business problem as much as a legal problem.
Work with your management team and attorney to assess the business implications and develop strategies that address both legal and business concerns.
Making Emotional Decisions
Patent litigation is stressful, and it’s natural to feel angry, defensive, or anxious. However, decisions should be based on strategic analysis, not emotion.
Whether to settle, how aggressively to defend, and what positions to take should be driven by careful assessment of the facts, law, costs, and business impact, not by anger at the plaintiff or fear of litigation.
Why You Need Experienced Counsel Immediately
Patent infringement litigation is complex, expensive, and high-stakes. The decisions you make in the first 21 days establish the foundation for your entire case, and mistakes made early can be difficult to correct later.
What Experienced Patent Litigation Counsel Provides
Experienced patent litigation attorneys provide immediate assessment of the complaint and your potential defenses, strategic planning for the entire litigation timeline, management of document preservation and discovery, technical and legal analysis of infringement and validity issues, negotiation with plaintiffs and their counsel, and coordination with insurance carriers and coverage counsel.
At Gallium Law, we defend clients against patent infringement claims across all technology sectors. Our team combines deep patent law expertise with practical business experience to deliver defense strategies that protect both your legal rights and business interests.
Your Path Forward
Being sued for patent infringement is serious, but many defendants successfully navigate these challenges with the right approach and experienced counsel. The outcome of your case will depend on many factors including the strength of the patent, the nature of your products, the quality of your defenses, and the strategic decisions you make throughout the litigation.
The 21 days following service of the complaint are critical. Use this action plan to ensure you take the right steps at the right time. Document preservation, insurance investigation, attorney retention, and strategic planning all need to happen quickly and correctly.
Most importantly, don’t face this alone. Patent litigation requires specialized expertise, and attempting to handle it without experienced counsel often leads to less favorable outcomes.
Contact Gallium Law today to discuss your patent infringement lawsuit and develop a comprehensive defense strategy. We offer initial consultations to evaluate your case and explain your options.
The next 21 days will shape your case for months or years to come. Make them count.
Legal Disclaimer: This article provides general information about patent infringement litigation for educational purposes only. It is not legal advice and should not be relied upon as such. Every case is unique and fact-specific. You should consult with a qualified patent litigation attorney about your specific situation. Reading this article does not create an attorney-client relationship with Gallium Law.