The first 30 days after a patent infringement complaint

A demand letter is a request for money. A complaint is a court document. The day a complaint and summons land on your front desk, you stop being a target and start being a defendant — with statutory deadlines, document-preservation duties, and a one-year shot clock on the cheapest invalidity tool you have.

Most companies spend the first 30 days reacting. The companies that do well spend it sequencing. Every move you make in month one shapes the budget, leverage, and exit options for the next two years of the case.

This is the timeline. Not what you might do — what actually has to happen, in order.

Day 0: the complaint arrives

A patent infringement complaint typically arrives one of three ways:

Personal service of a summons + complaint by a process server (most common for U.S. defendants).
Waiver of service — the plaintiff mails a request asking you to waive formal service in exchange for a longer response window (60 days vs. 21).
Service on a registered agent — for corporations, often the formal vector. Your registered agent forwards it to whoever they have on file.

What you have in hand is a complaint (the plaintiff's narrative of who infringed what), a summons (the court's order to appear and answer), and often a civil cover sheet plus exhibits — usually the asserted patent and sometimes a claim chart.

The complaint will state at least:

The plaintiff entity (often a shell LLC — note the entity name and state of formation).
The asserted patents (note the numbers — pull them on Google Patents same day).
The accused products or services.
The court (usually a federal district court — patent cases can't be filed in state court).
The judge assignment (sometimes appears later).

Day 1: the four things you do today

Before anyone debates strategy:

1. Issue a litigation hold

The moment a complaint is served, document preservation duties harden. If you had only soft duties when the demand letter arrived, you now have hard ones. Spoliation sanctions — including adverse inferences and monetary penalties — are the only thing in this case that can hurt you regardless of who's right on the merits.

Send a written hold notice to:

Engineers who worked on the accused product
Product managers and designers
Sales and marketing for the accused product
Anyone who corresponded with the plaintiff or the patent's inventors

Tell IT to suspend automated email and Slack purges for those custodians. Suspend source-code-repository garbage collection if it would prune branches relevant to the accused functionality. Keep the hold notice itself — you'll attach it to a future declaration.

2. Calendar every deadline

Three dates matter immediately:

Answer deadline. Federal Rule 12(a): 21 days from service, or 60 days if you waived service. Missing this is how default judgments happen.
One-year IPR bar. Under 35 U.S.C. § 315(b), you can't file an Inter Partes Review more than one year after service of the complaint. This is a hard, jurisdictional bar. The PTAB has no discretion to extend it.
Initial scheduling conference. Usually 60-120 days out, depending on local rules. Sets the case schedule the rest of the litigation runs on.

3. Read the patent and the complaint, in that order

Your CEO will want to read the complaint first. That's natural and wrong. Read the patent first — start with the independent claims. Then read the complaint with the claims in mind. The complaint is a story; the claims are the law. Know what's actually being asserted before you let the plaintiff frame it.

4. Get a patent litigation attorney on the phone

Not your corporate counsel. A patent litigation specialist. The first call is free at most firms; bring the complaint, the patent, and a one-page product description.

If your existing counsel is large enough, they may have an IP litigation group. If not, ask for referrals to IP boutiques. Boutiques often run 30-50% cheaper than AmLaw 100 firms for early-stage work and lose nothing on quality.

The 30-day map

flowchart TD
  D0["Day 0: Complaint served"] --> D1["Day 1: Litigation hold<br/>+ counsel retained"]
  D1 --> W1["Week 1: Patent + complaint review"]
  W1 --> W2["Week 2: Venue + Rule 12 analysis"]
  W2 --> W3["Week 3: Prior art triage<br/>+ co-defendant outreach"]
  W3 --> W4["Week 4: Answer or 12(b) motion"]
  W4 --> NEXT["Days 30-90: Initial disclosures<br/>+ scheduling conf<br/>+ IPR decision"]

  style D0 fill:#fee2e2,stroke:#be123c,color:#1c1917
  style D1 fill:#fff7ed,stroke:#c2410c,color:#1c1917
  style W4 fill:#dbeafe,stroke:#1e40af,color:#1c1917
  style NEXT fill:#d1fae5,stroke:#047857,color:#1c1917

The shape is: stabilize, evaluate, position, respond. Skip a step and you'll pay for it later.

Week 1 (days 1-7): stabilize

The goal of week one is to make sure nothing irreversible happens by accident.

Tighten the litigation hold

Once initial counsel reviews the complaint, expand the hold. New custodians often surface — the inventor's old manager, the third-party SDK vendor, the offshore engineering team. Document every expansion in writing.

Lock the privilege

Anyone in the company who isn't an attorney shouldn't be writing emails analyzing the patent. Nothing kills attorney-client privilege faster than an engineer's hot take on infringement landing in a Gmail thread that gets produced in discovery.

Issue a one-page communications protocol:

All written analysis goes through outside counsel.
Internal discussions about the case are verbal or written only at counsel's direction.
Don't forward the complaint to vendors, suppliers, or customers without legal review.

Pull the plaintiff's litigation history

Every named plaintiff has a track record. Things to find:

How many cases has this entity filed? (PACER, RPX, Unified Patents, our litigation registry.)
What's the median time-to-dismissal? Trolls running settlement campaigns drop cases at the first credible resistance.
Which counsel represents the plaintiff? Some firms specialize in serial NPE assertion.
Is the patent already in IPR?
Are there other defendants in earlier-filed parallel cases?

If the plaintiff has filed against five or more companies on the same patent, this is a campaign, not a bespoke assertion. The defense math changes accordingly.

Identify the funder, if any

Many NPE cases are bankrolled by litigation finance funds. Federal Rule 26 disclosures and recent Western District of Texas standing orders increasingly force funder identification. If a known funder is behind the case, look at how that funder typically resolves matters — some push for trial, most settle on a known curve.

Week 2 (days 7-14): evaluate

Now you decide how the case gets answered.

Run the venue analysis

Where the case is filed shapes nearly everything. Post-TC Heartland (2017), a domestic corporation can be sued for patent infringement only:

In its state of incorporation, or
In a district where it has a regular and established place of business AND has committed acts of infringement.

If the plaintiff filed somewhere that doesn't satisfy § 1400(b), a venue motion under Rule 12(b)(3) or a motion to transfer under 28 U.S.C. § 1404(a) is available. The most common transfer plays:

From E.D. Tex. to a defendant's home district. In re Volkswagen and a string of Federal Circuit mandamus orders make this routine for Texas-filed cases.
From W.D. Tex. (Waco division) to N.D. Cal. Common for Silicon Valley defendants. Federal Circuit mandamus practice in the early 2020s made these transfers easier.
From D. Del. anywhere. Hardest. Delaware is most defendants' state of incorporation, so § 1400(b) is satisfied on its face.

A successful venue motion can delay the case 6-12 months and shift it to a forum with a faster docket and less plaintiff-friendly law. Ten weeks of attorney time, $50k-$150k in fees, often worth it.

Run the Rule 12 analysis

Three flavors of pre-answer motion show up in patent cases:

Rule 12(b)(6) — failure to state a claim. Useful if the complaint doesn't plausibly allege infringement of each limitation of at least one claim. Post-Iqbal / Twombly, courts require a real factual basis.
Rule 12(b)(3) — improper venue. The TC Heartland play above.
§ 101 / Alice motion. A motion to dismiss arguing the patent claims unpatentable subject matter under Alice Corp. v. CLS Bank. Particularly potent against software patents that recite abstract ideas implemented on a generic computer. Sometimes resolved before discovery starts. (Bilski v. Kappos and Mayo v. Prometheus are the surrounding doctrine.)

You can combine motions or stage them. Often the right move is: file the Rule 12 motion that has the best shot, hold the others in reserve as fallback positions. Don't file weak motions just to file motions — every losing motion educates the plaintiff and frustrates the judge.

Decide: motion or answer

The fork:

flowchart TD
  S["Day 14: posture decision"] --> Q1{"Real Rule 12<br/>argument?"}
  Q1 -->|"Yes — venue<br/>or § 101"| M["File 12(b) motion<br/>delays answer"]
  Q1 -->|"No clean argument"| A["File answer<br/>+ counterclaims"]
  M --> M2["Court rules<br/>2-6 months"]
  M2 --> Q2{"Granted?"}
  Q2 -->|"Yes"| EXIT["Case dismissed<br/>or transferred"]
  Q2 -->|"No"| A
  A --> DISC["Discovery begins"]

  style S fill:#fff7ed,stroke:#c2410c,color:#1c1917
  style EXIT fill:#d1fae5,stroke:#047857,color:#1c1917
  style DISC fill:#dbeafe,stroke:#1e40af,color:#1c1917

If you file a 12(b) motion, your answer deadline is suspended until the court rules. That can buy 2-6 months. If you file an answer, you're in discovery as soon as the scheduling conference happens.

Week 3 (days 14-21): position

Now you build the leverage you'll use for the rest of the case.

Prior-art triage

The single highest-leverage thing you can do in the first 30 days is figure out whether prior art exists. If it does, the IPR calculus tilts toward filing — and the case may stay.

Three hours of focused searching with free tools (Google Patents, Lens.org, Espacenet) often surfaces enough to know whether you're in § 102 territory (anticipation) or § 103 territory (obviousness combinations) or empty. Don't try to build the IPR petition yet — just answer the question: is there anything?

If there is, share it with counsel under privilege. The patent's invalidity becomes the case's center of gravity. (If the patent already has a public dossier on this site, you start with the prior-art and obviousness sections done.)

Co-defendant outreach

If the plaintiff has filed against multiple defendants on the same patent — even at different times — those defendants are now your most valuable allies. Joint defense groups (JDGs) split costs, share invalidity research, and coordinate strategy.

The economics are real: a JDG of 10 defendants can run a single IPR for $30k-$50k each instead of $300k-$500k each. Discovery research, claim construction briefs, expert reports — all shareable.

The how:

Pull the plaintiff's prior cases on PACER. Identify defense counsel for each.
Have your counsel reach out — JDG outreach has its own conventions and a privilege framework that has to be set up correctly (a written common-interest agreement before any sensitive material gets shared).
Sign a common-interest agreement. Without one, communications between defendants aren't privileged.
Pool research budgets. A JDG that hires a single prior-art search firm gets one good search for the price of one bad search per defendant.

The plaintiff's economic model assumes uncoordinated defendants. Coordinating breaks the model.

Read the demand history with new eyes

If you got a demand letter before the complaint, re-read it in light of what's now in the complaint. Plaintiffs often soften the infringement story in the demand letter to look reasonable, then escalate in the complaint. The delta is sometimes admissible — and is always useful for assessing credibility.

If the plaintiff added new patents or new accused products in the complaint that weren't in the letter, that's a tell about how confident they actually are.

Week 4 (days 21-30): respond

The deadlines hit.

File the Rule 12 motion or answer

Hand off to the lead litigator. By now you should have:

A finalized motion or answer.
An accompanying declaration from the inventor, founder, or an engineering lead if the motion needs factual support.
Affirmative defenses listed (invalidity, non-infringement, prosecution history estoppel, license, exhaustion, § 285 reservation).
Counterclaims if you're filing an answer (declaratory judgment of invalidity and non-infringement at minimum).

Skipping affirmative defenses or counterclaims at the answer stage forfeits them. File them all and prune later.

Make the IPR call

You don't have to file IPR in 30 days. You have a year. But the decision should be made in 30, because:

A petition that institutes triggers a likely stay of the district-court case — saving you discovery costs.
The earlier you file, the more pressure you put on settlement. Plaintiffs settle harder when an IPR is pending.
Petition prep takes 2-4 months. Starting the work in month one positions you to file in months 4-6.

The decision factors:

Strength of the prior art (need clear § 102 or § 103 references).
Estoppel exposure — what arguments you give up if IPR loses.
Settlement posture — IPR is loud and signals a fight.
Co-defendant share of the cost.

Set the budget

By day 30, ask your CFO for a litigation reserve covering:

Phase	Likely spend
Months 0-6: motions, initial discovery	$200k-$500k
Months 6-12: full discovery, claim construction prep	$500k-$1.5M
Months 12-18: Markman, summary judgment	$300k-$1M
Months 18-24: trial prep + trial (if it goes)	$500k-$2M

Most NPE cases settle before half of this is spent, often during discovery. (How patent troll campaigns extract settlement during discovery →) But the only way to credibly negotiate down is to have the budget — plaintiffs read defendant cash positions through their counsel's behavior.

Decisions you should NOT make in 30 days

A list of things people do too quickly and shouldn't:

Settle. Settlement value rarely peaks in month one. Plaintiffs are still figuring out which defendants to pressure hardest. Wait.
Counter-offer in writing. Anything in writing during month one anchors the negotiation. Make verbal offers through counsel only.
Redesign the product to "design around." Without a careful non-infringement analysis, you risk: (a) staying within the claim's scope anyway, (b) creating a paper trail that admits the original design was infringing, (c) wrecking your own product. Engineering work on design-arounds happens, but should never start in the first 30 days without an attorney's written go-ahead.
Talk publicly about the case. No tweets, no blog posts, no investor calls beyond legally-required disclosures. Anything you say is admissible.

What "month one well done" looks like

By day 30, a defendant who's done it right has:

An issued and acknowledged litigation hold.
A full calendar of every deadline through trial.
A retained patent litigation team with a written engagement and a budget.
A ranked list of Rule 12 motions, with the strongest one filed or about to file.
A first-pass prior-art read, with a recommendation on whether IPR is viable.
Counsel-to-counsel outreach to every co-defendant on the same patent.
A privilege protocol in place inside the company.
A 24-month budget reserve.

That position lets you make the next round of decisions — answer-vs-motion outcome, IPR filing, claim construction posture, settlement floor — with leverage. Defendants who skip steps in month one spend month four trying to recover.

Bottom line

Patent litigation rewards sequencing. The plaintiff has a campaign — sometimes literal, in the case of serial NPE assertion, sometimes just a litigation strategy in the case of an operating company. Either way, the first 30 days is when the structural facts of the case get set: venue, motions on file, IPR window, JDG formation, budget. Everything that comes after rides on that foundation.

You don't have to be perfect in month one. You do have to not skip the steps. Get counsel, lock the hold, calendar everything, run venue and Rule 12, do prior-art triage, talk to your co-defendants, and decide on IPR before week six. (Then read the litigation lifecycle → for what months 2-24 look like.)

If a demand letter showed up before the complaint and you've been here before, our demand-letter analyzer is the parallel triage tool — it does for the letter what 30 days of counsel work does for the complaint, faster and cheaper. (Or take the quiz if you're still figuring out which kind of trouble you're in.)

This article is for general education and is not legal advice. Get a patent litigation attorney before doing anything other than not destroying documents.