Starting a new business is an incredible endeavor. Owners are typically juggling numerous responsibilities, from hiring staff and finding office space to developing marketing strategies and trying to generate a profit. It can be very difficult for any business owner to slow down and give their full attention to an unexpected situation.
Unfortunately, this makes small, new businesses tempting targets for patent trolls. As such, you should know what you can do if you are a new or small business owner who has received a notice of infringement from a potential troll.
Determine if it is a troll
Not every party who sends a letter notifying you of patent infringement is a troll. Any person who holds a patent has the right to control the use of the patented material. However, patent trolls are not the parties who develop or use a patent: they buy up other people’s patents and then threaten companies appearing to infringe on the patent with lawsuits. They do this in the hopes that the targets will pay a licensing fee rather than take the matter to court.
To determine if you have been targeted by a troll, examine the letter you receive. If it is unnecessarily complicated, appears to be a form letter, or if it does not explicitly name the patent or patent owner, the request may be from a troll.
If the request is from a legitimate patent holder, be sure you address it seriously. This could mean immediately stopping any infringing actions or agreeing to pay a licensing fee to the patent holder. You could also respond and state that you are not infringing on the patent if that is the case.
If the request is from a troll, assess your options from a different perspective. Is there a chance you would win in litigation? Would paying the licensing fee demanded in the letter solve your problems, or could it create more? You might also think about not responding. In some cases, the trolling party will have sent the letter to several parties and will only hone in on the ones that respond.
In either case, you would be wise to consult an attorney to examine your options and next steps. No matter how you choose to respond, doing so through an attorney will establish that you have legal representation, which could scare off unscrupulous patent trolls.