The first week

The date in your head is probably the date you were handed the papers, and that is not necessarily the date the clock started. Service can happen in several ways, waivers change the arithmetic, and extensions are common and often uncontested.

What you want is the docket for your case, in your court, read by someone who reads dockets. Until that is done, treat the earliest plausible date as the real one and work backwards from it.

What to write down today

• The court and division, the case number, and the judge assigned.
• The date and manner in which your company was served, and who accepted the papers.
• Every patent number asserted against you, exactly as printed.
• The name of the plaintiff and whether you have ever heard of them before.

Most companies delete email and files on a schedule nobody thinks about. Once a dispute exists, routine deletion of anything touching the accused product needs to be suspended, including chat, ticketing systems, source control history, and the mailbox of anyone who left last month.

Courts treat this seriously, and losing documents is one of the few things that can make a manageable case much worse regardless of whether you infringe. It is also the item most often handled by someone assuming somebody else already did it.

How it usually gets done

• A short written notice from counsel to everyone who touches the product, saying plainly what to keep.
• Instructions to whoever administers email, backups and chat to turn off automatic deletion for those people and systems.
• A dated record of when the notice went out and who received it.

Some business policies cover intellectual property defense, sometimes under a heading nobody would think to look under, such as advertising injury. Companies discover this after paying for a year of a defense their insurer would have funded.

Late notice can forfeit that coverage entirely, which makes the phone call time-sensitive even though the answer might be no. Ask in writing, keep the date, and send the complaint along with the request.

The instinct is to forward the complaint to the engineering team and ask whether it is true. What comes back is an honest, hurried opinion from someone who has never read a patent claim, and it can be read back to you two years later by a lawyer who is not on your side.

Engineers absolutely should be involved. The conversation just needs to happen with counsel in it, so that the analysis has a chance of being privileged and so that nobody guesses in writing about a document they have not seen.

The same applies outward. No statements to customers, investors, resellers or social accounts about the case until someone has read the complaint properly.

Whoever you hire will ask for these in the first meeting. Having them ready shortens the expensive part of the engagement, and assembling them is work you can do without a lawyer.

What to put in one place

• Every asserted patent number, and a copy of each patent.
• Everything you have received, with the date each item arrived: letters, emails, the complaint, exhibits.
• A plain description of how the accused product actually works, written by someone who built it, with no legal characterization in it.
• Who designed and built it, including anyone who has since left, and roughly when.
• Whether anyone inside the company had heard of this patent or this plaintiff before, and when.

That last one matters more than it looks. It is an ordinary question with ordinary answers, and it is far better answered now than under oath by someone who forgot.

The first name you are given is not automatically the right one, and the conversation is an interview you are conducting. Patent litigation is a small field with wide variation in how technical the lawyer actually is, and the difference is not visible on a website.

Questions worth asking any 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?

The last one separates the answers fastest. A lawyer who will tell you plainly what is not worth doing is handing you information, not turning down work.

Ask about conflicts early too. A firm that represents your largest customer may not be able to take the case at all, and finding that out in week three costs you a week.

An answer or a motion goes in on the deadline. A schedule gets set. Then, in most patent cases, the fight moves to what the words in the claims mean, in a step called claim construction and sometimes called a Markman hearing. A judge decides the meaning of the disputed terms, and cases are frequently decided in substance by that ruling long before anyone sees a jury.

A great deal of the leverage in that ruling comes from the public record of what the patent owner told the patent office in order to get the patent granted. Applicants narrow their claims to get past a rejection, and those narrowings are permanent and public. Reading all of it is slow work that many people skip.

There may also be a second front. Some patent fights move to the Patent Trial and Appeal Board in a proceeding called an inter partes review, which asks whether the patent should have been granted at all. It runs on a different clock and a different budget than the case in district court, and whether to open one is a decision, not a formality.

The cost people underestimate is attention. Discovery pulls engineers away from building for real stretches of time. Naming one internal owner early, someone who can find documents and make decisions, is worth more than it sounds.