It is a scenario that every company dreads: your new product is on the market and receiving rave reviews, sales are outpacing all expectations, and smooth sailing is on the horizon, when you receive a letter from a competitor’s attorney. “We write to bring the following patents to your attention ….” You have a decision to make, and your company’s future might even be on the line. What do you do?

First, you should contact a patent litigator and make preparations for defending the potential patent infringement lawsuit. Depending on the circumstances, the patent litigator may recommend initiating a declaratory judgment action in order to seek out a favorable forum in which to contest such a lawsuit. Of course, concurrently with making preparations for litigation, you should also conduct settlement discussions with the other party before proceeding with a federal suit that might incur millions of dollars in legal fees, to say nothing of damages you might owe should the opposing party prevail. To aid in these settlement discussions, you should also contact qualified patent counsel to draft a petition for inter partes review (IPR). The petition can be a key weapon in the course of settlement discussions and will be ready to file should discussions fail.

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