Topic list: First steps after you are sued. Typical district-court timeline. Deep dive: questions new defendants ask. Practice pointers. Related FAQs.
Search tags: #faq #defendant #service #answer #rule12 #venue #willfulness #ipr #document-hold #settlement #timeline #patent-litigation
First steps after you are sued
If a process server hands you papers, or you find a complaint and summons in the mail or at the office, treat the deadline as real. A patent case is a federal civil lawsuit. Missing the response date can lead to a default judgment under Federal Rule of Civil Procedure 55.
In the first days, most companies do five practical things: (1) calendar the response deadline from the summons and Rule 12, (2) hire counsel who handles patent cases in that court, (3) send a company-wide litigation hold so people stop deleting email, chats, code, and product files, (4) gather the complaint, exhibits, patents, and any pre-suit letters, and (5) map which products, services, customers, and suppliers the complaint actually names.
Do not call the plaintiff's lawyer to "just explain" the product unless your own counsel is on that call. Casual statements can be used later. Do not destroy or "clean up" old files. Do not post about the suit on social media as if it were a press release.
Typical district-court timeline (rough guide)
Exact dates come from the Federal Rules, the summons, the judge's standing orders, and any local patent rules. Districts such as the Eastern District of Texas, the District of Delaware, and the Northern District of California often run patent cases on a published schedule. The ranges below are common patterns, not a promise for your case.
Day 0 to about week 2: papers, hold, and triage
Service starts the clock. Counsel reviews the patents, the accused products, venue and personal jurisdiction, and whether the complaint is thin on facts. The litigation hold goes out. Insurance notice and supplier indemnity letters often go out in this window if policies or contracts may apply.
About day 21 (or longer after a waiver): answer or Rule 12 motion
Under Rule 12(a)(1)(A), a defendant usually must serve an answer within 21 days after being served with the summons and complaint. If the defendant timely waives formal service under Rule 4(d), the answer is often due 60 days after the waiver request was sent (90 days if the defendant is outside any U.S. judicial district). A Rule 12 motion to dismiss can take the place of an early answer on the issues it raises. Always read the summons and confirm the date with counsel.
Months 1 to 3: scheduling order and the case plan
The court usually sets a Rule 16 schedule after the parties' Rule 26(f) conference. That order often sets deadlines for initial disclosures, infringement and invalidity contentions, claim construction, fact discovery, expert reports, summary judgment, and trial. This is when the case stops being "a complaint" and becomes a calendar you must staff.
Months 3 to 12 (often): claim construction and core discovery
Many patent cases turn on what the claim words mean. Courts hold a claim-construction (Markman) process with briefs and often a hearing. Fact discovery (documents, depositions, source code, sales data) may run before, during, or after claim construction depending on the district and the judge. Invalidity work and prior-art searching usually ramp hard in this period.
Months 6 to 18+: experts, summary judgment, trial pressure
Expert reports on infringement, invalidity, and damages often land in the middle or later third of the schedule. Summary judgment and Daubert motions may follow. If the case does not settle, trial in a patent case is often measured in many months to a few years from filing, not weeks. Plenty of cases settle earlier once claim construction, IPR results, or damages exposure become clearer.
Parallel track: PTAB review (when used)
A defendant may petition the Patent Trial and Appeal Board for inter partes review (IPR) or a related AIA trial to challenge patent claims. By statute, an IPR petition is generally barred if filed more than one year after the petitioner was served with a complaint alleging infringement of that patent (35 U.S.C. 315(b)), subject to limited exceptions and case law glosses. Institution, trial, and a final written decision add their own months-long clock. District courts sometimes stay the court case while an IPR proceeds; sometimes they do not.
Deep dive: questions new defendants ask
Q1. Do we have to respond if the claims look weak? #answer #rule12
Yes. Weak claims do not pause the deadline. You respond with an answer, a Rule 12 motion, a negotiated extension, or another step your counsel files. Ignoring the case because the patent "looks silly" is how defaults happen.
Q2. How long do we have to answer? #timeline #service
Start with the summons and Rule 12(a). The common default is 21 days after service of the summons and complaint. A proper Rule 4(d) waiver often stretches that to 60 days from when the waiver request was sent (90 days for many defendants abroad). Courts can also grant extensions. Do not assume you have 60 days unless counsel confirms a valid waiver or order.
Q3. What is the difference between the summons and the complaint?
The complaint is the plaintiff's story: which patents, which products, and what relief they want. The summons is the court's formal notice that you have been sued and must respond by a deadline. Both matter. Keep every page and every exhibit.
Q4. Can we be sued in Texas (or Delaware) if we are based somewhere else? #venue
Sometimes yes. Patent venue and personal jurisdiction follow federal statutes and case law, not just where your headquarters sits. Foreign companies often see complaints that plead U.S. sales, U.S. subsidiaries, or foreign-defendant venue rules. Early motions on venue and personal jurisdiction are common when the fit looks forced. See also this site's litigation FAQ on venue and section 101.
Q5. Should we pull the product or change the design right away?
Not automatically, and not as a panic move without counsel. Sometimes a redesign reduces risk. Sometimes a sudden change creates new documents, customer issues, or an argument about willfulness or ongoing conduct. The right move depends on the claim scope, sales volume, design alternatives, and injunction risk. That is a counsel and business decision, not a weekend engineering task.
Q6. What is willfulness, and why does the complaint say it? #willfulness
Willfulness is the plaintiff's bid for enhanced damages under 35 U.S.C. 284 if it later proves infringement and that your conduct was egregious under the governing standard. Many complaints plead willfulness early, sometimes based only on the lawsuit itself for post-filing conduct. Pre-suit notice letters matter. So do internal emails that joke about the patent or say "ignore it." Talk to counsel before you write anything about the patents in Slack or email.
Q7. Do we need a patent litigator, or can our usual business lawyer handle it?
Patent cases mix federal procedure with claim construction, prior art, experts, and often PTAB practice. Most companies use counsel who regularly try or manage patent cases in that district, sometimes with local counsel if lead counsel is from elsewhere. Your usual corporate lawyer is still valuable for contracts, insurance, and business context.
Q8. What is a litigation hold, and who gets it? #document-hold
A litigation hold is a written order inside your company: preserve emails, chats, tickets, source code, schematics, marketing decks, sales spreadsheets, and anything else that may relate to the patents or accused products. It usually goes to engineers, product managers, sales, executives, and IT. Auto-delete policies get paused for the relevant custodians. Courts can punish spoliation. Early preservation is cheaper than later explanations.
Q9. Should we talk settlement in the first month? #settlement
Sometimes early talks make sense; sometimes they work better after a first motion, claim charts, or an IPR filing. New defendants often ask whether paying quickly is "admission." Settlement is usually a business compromise, not a court finding of infringement, but the documents still need care. Do not negotiate substantive patent merits without counsel.
Q10. What about insurance and supplier indemnity?
Some policies may cover defense costs or indemnity for advertising-injury or intellectual-property claims; many exclude patent infringement or limit it. Read the policy and send timely notice. If a chip, module, or OEM part is accused, contracts may require a supplier to defend or indemnify. Those letters often go out early, with the complaint attached.
Q11. What is an IPR, and should we file one? #ipr
Inter partes review is a Patent Office proceeding where a petitioner argues that patent claims are unpatentable over prior-art patents or printed publications. It can be a powerful validity tool, but it has fees, estoppel risks, and the one-year 315(b) clock after service of an infringement complaint on that patent. Whether to file, and when, is case-specific.
Q12. What if we also got an ITC complaint?
The U.S. International Trade Commission can investigate unfair imports under section 337 and seek exclusion orders that affect imported goods. ITC cases move faster than many district cases and focus on importation and domestic industry as well as infringement and validity. Dual-track district-plus-ITC campaigns are common. See this site's litigation FAQ on dual-track filings.
Q13. Can the plaintiff get our customers involved?
Sometimes plaintiffs sue makers and sellers in the same chain. Customers may get subpoenas even if they are not named. Indemnity and customer notices need a coordinated plan so sales teams do not freelance legal advice.
Q14. How much does this cost, and how long will it take?
Cost tracks how hard the case is fought: number of patents and claims, source-code discovery, experts, motions, and whether an IPR is filed. Many cases resolve before trial; some do not. Ask counsel for a phase budget (pleadings, claim construction, discovery, experts) rather than one vague number. Timelines follow the court's schedule more than anyone's preference.
Q15. What should we not do in the first week?
Do not ignore the summons. Do not delete email or "tidy" shared drives. Do not email the plaintiff a technical tutorial. Do not tell the team the patent is invalid in writing without counsel framing the work. Do not assume a foreign parent is unreachable. Do not wait to notify insurers if notice deadlines may apply.
Practice pointers
Calendar the Rule 12 date the day papers arrive, then confirm it against the summons, any waiver, and local orders.
Issue the litigation hold before broad internal brainstorming about the patents, so preservation is not an afterthought.
Build a one-page map early: patents asserted, products accused, key dates, insurers, and suppliers with indemnity clauses.
If PTAB review is on the table, track the 315(b) one-year service clock from day one so the option does not expire by accident.
What to do next
Watch for your summons deadline and any court order that changes it. Watch whether the plaintiff serves infringement contentions or presses for early discovery. Also watch the one-year IPR clock under section 315(b) if validity challenges are part of the plan.
Related reading on this site: the litigation-practice FAQ covers venue with section 101, dual-track ITC filings, marking pleas, and foundry settlements. The FAQ hub lists all plain-English guides.