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Patent Litigation / Re: Responding to a C and D letter
« on: 02-22-13 at 07:43 pm »
As a litigator who has handled this issue several times without being involved and AFTER THE FACT, I would not respond in writing, if at all.
The issue of willfulness is moot. You are on notice. It does not matter whether you respond and say you are not infringing. Either you already have a good faith belief that you do not (which you should memorialize), or you are about to form onew.
As for detailing your non-infringement position, you will only look hypocritical later when the trial attorneys assert other defenses or constructions. Or invalidity. Or laches.
As for sending proof of non-infringement, do you really believe that you will avoid a lawsuit by doing so? Are you trying to convince an unbiased decision maker? Not to be condescending, but get real. These guys want money.
As for DJ, you clearly have jurisdiction - as of 8-10 years ago, the law is now any cease and desist letter gives rise to a controversey. However, is venue proper where you want to sue? Are you going to get a quick resolution? Once you go down this road, you are likely to be gearing up for trial. This is going to be expensive. Unfortunately, there is no equivalent to a PI for alleged infringers.
Go ahead, instigate a litigation hold notice, and get ready for a full-blown lawsuit. Figure out how to cross claim. Maybe consider calling for settlement. But don't get into this expensive, wasteful and completely unproductive argument as to why they should not sue you.
The issue of willfulness is moot. You are on notice. It does not matter whether you respond and say you are not infringing. Either you already have a good faith belief that you do not (which you should memorialize), or you are about to form onew.
As for detailing your non-infringement position, you will only look hypocritical later when the trial attorneys assert other defenses or constructions. Or invalidity. Or laches.
As for sending proof of non-infringement, do you really believe that you will avoid a lawsuit by doing so? Are you trying to convince an unbiased decision maker? Not to be condescending, but get real. These guys want money.
As for DJ, you clearly have jurisdiction - as of 8-10 years ago, the law is now any cease and desist letter gives rise to a controversey. However, is venue proper where you want to sue? Are you going to get a quick resolution? Once you go down this road, you are likely to be gearing up for trial. This is going to be expensive. Unfortunately, there is no equivalent to a PI for alleged infringers.
Go ahead, instigate a litigation hold notice, and get ready for a full-blown lawsuit. Figure out how to cross claim. Maybe consider calling for settlement. But don't get into this expensive, wasteful and completely unproductive argument as to why they should not sue you.

