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Do not ignore the letter, but do not treat it as a court order. A patent owner’s cease-and-desist demand is a serious litigation signal, not an injunction. For a U.S. construction project, preserve every relevant record, involve patent-litigation and construction counsel immediately, verify exactly what patent claims and project activities are being asserted, and create a continuity plan before anyone changes the design or stops work.
The right response may be a documented noninfringement position, a redesign, a license, a challenge to patent validity, or a carefully managed combination. The choice depends on the asserted claim limitations, evidence, schedule, safety, contract obligations, and the owner’s willingness and ability to seek relief.
What to do in the first 24 hours
- Preserve the demand and the project record. Save the original letter and envelope or email metadata, every patent copy and claim chart, drawings, BIM files, specifications, submittals, change orders, purchase orders, invoices, photographs, inspection records, meeting notes, emails, text messages, and dated versions of the design. Suspend routine deletion and issue a litigation hold covering employees, consultants, cloud repositories, project-management systems, and subcontractors.
- Route the letter to the right people. Send it promptly to patent-litigation counsel, the project’s construction lawyer, the insurer, lender, risk manager, and any contract administrator who handles notice obligations. Calendar every deadline stated by the patent owner. A project manager or engineer should not answer technical or legal allegations informally or make admissions in a call.
- Freeze avoidable changes, not necessarily the entire project. Do not destroy evidence, backdate a drawing, or order a rushed substitute solely to make a claim chart look better. Counsel and the design team should identify which procurement and installation decisions can proceed safely and which require a hold point.
- Establish one communications channel. Name a legal contact authorized to communicate with the patent owner and a technical contact who can supply facts. Mark internal legal advice appropriately and keep business negotiations, engineering analysis, and safety decisions in separate workstreams.
These steps protect both legal defenses and practical options. They also prevent a deadline in a demand letter from silently becoming a missed insurance notice, lender notice, or contractual default.
What the patent owner must prove
Patent claims control the analysis
Under 35 U.S.C. § 271(a), direct infringement generally includes making, using, offering to sell, or selling a patented invention in the United States during the patent term. The patent’s claims—not its abstract, marketing description, or a broad resemblance—define the protected scope. A court first interprets disputed claim language (claim construction), then compares the accused product or process with the asserted claims.
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Literal infringement generally requires every limitation of at least one asserted claim to be present in the accused device, system, or method. The doctrine of equivalents can create additional risk where an element is not literally present but is alleged to perform substantially the same function in substantially the same way to achieve the same result. Engineers should therefore preserve the reasoning behind design choices and not assume that changing a label or dimension ends the analysis.
An issued patent is presumed valid, but it is not immune from challenge
Potential defenses include noninfringement, invalidity, unenforceability, and applicable statutory exceptions. Invalidity evidence may come from earlier publications, products, public uses, or other records; counsel must assess what evidence is admissible and how it affects each asserted claim. The fact that the patent issued does not decide whether your particular project infringes.
Relief can include money and an injunction
A court may award compensatory damages and may grant an injunction under 35 U.S.C. § 283. A permanent injunction is not automatic after a finding of infringement. The equitable framework associated with eBay requires a fact-specific record, including the effect of delay on the project, public or safety consequences, whether redesign is feasible, whether money can compensate the patent owner, and the parties’ conduct. Build that record from the first day rather than waiting for an injunction motion.
Verify the threat before making a project decision
Have counsel confirm the following in writing:
- the patent number, title, issue date, current owner, assignment history, maintenance status, and expiration status;
- the exact claims asserted and any related family members that could be asserted later;
- the specific project activity alleged to infringe—such as manufacturing a component, installing a system, using a method, or selling a completed package;
- the prosecution history, including amendments and arguments that may affect claim meaning;
- any prior license, covenant not to sue, settlement, or earlier litigation involving the patent;
- the letter’s demand: stop work, stop sales, preserve evidence, provide information, negotiate a license, or meet a stated deadline.
Ask the technical team to create a dated claim chart that maps every asserted limitation to the actual design, material, equipment, software, and installation step. Mark each mapping as present, absent, uncertain, or dependent on a supplier specification. Record the source drawing, model number, revision, test, or contract document supporting each entry. Do not alter the project merely to improve the chart; preserve the original state and document any later revision separately.
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| Claim-chart question | Evidence to collect | Decision value |
|---|---|---|
| Is each limitation present? | Drawings, BIM objects, specifications, bills of materials, and installation procedures | Supports a noninfringement position or identifies the feature that needs redesign |
| Who supplies or performs the feature? | Purchase orders, subcontract scopes, commissioning records, and software licenses | Clarifies exposure, indemnity, and who can implement a change |
| Which revision was used? | Dated files, transmittals, field photographs, and change orders | Separates past versions from the design now being built |
| What evidence challenges validity? | Prior-art searches, product records, publications, and prosecution-history documents | Informs litigation, settlement leverage, or a PTAB petition |
Can you keep building while the dispute is pending?
A demand letter alone does not stop construction. Continuing, however, can increase potential damages, complicate an equitable-injunction analysis, or create evidence that a court later views unfavorably. Stopping everything can trigger delay damages, financing problems, liquidated damages, safety risks, or breach claims. The decision should be made feature by feature with counsel, the engineer of record, the owner, and the insurer.
Use documented hold points
Place temporary holds on procurement or installation steps that would make a redesign expensive or impossible, while allowing unaffected work to proceed. Examples include releasing foundations and utilities while holding a disputed equipment package, or fabricating a noncontroversial enclosure while preserving the disputed internal configuration. Every hold point should identify the responsible decision maker, the release condition, the latest date that protects the schedule, and the safety or code checks required before substitution.
Keep safety and code compliance independent
Do not replace a material, control system, or construction method merely to respond quickly. The substitute must be reviewed for structural performance, fire and life safety, environmental requirements, commissioning, warranties, permits, and applicable codes. A patent workaround that fails a code inspection can create a larger legal and financial problem than the original allegation.
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Model at least one noninfringing design, one licensed-use scenario, and one sequencing plan using substitute materials or equipment. Identify long-lead items, shop-drawing deadlines, testing, training, and re-permitting. Keep the alternatives confidential where appropriate, but preserve dated engineering analyses so the project can later show why a particular course was or was not feasible.
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Compare the main response paths
| Response | When it fits | Advantages | Principal costs and risks |
|---|---|---|---|
| Documented noninfringement position | The claim chart shows at least one required limitation is absent, or the owner’s theory depends on an unsupported construction | Can preserve the original design and improve negotiating leverage | Requires disciplined evidence; the owner may still sue or seek urgent relief |
| Redesign or substitute | A disputed feature is central, a practical alternative exists, and schedule impact is manageable | May reduce future exposure without paying for a license | Engineering, procurement, testing, re-permitting, warranty, and delay costs; a redesign can still implicate equivalents |
| License or settlement | The patent appears relevant, redesign is costly, and the owner can grant usable rights | Can stabilize the project and define permitted sites, users, and future work | Royalty, audit, reporting, release, indemnity, and scope limitations; a narrow license may not cover contractors or affiliates |
| Declaratory-judgment action | There is a specific, credible threat and the project needs a court ruling of noninfringement or invalidity | May provide a forum and reduce uncertainty before the owner files first | Jurisdiction, venue, personal jurisdiction, cost, and strategic exposure; filing can escalate the dispute |
| PTAB challenge | The patent and evidence meet the statutory requirements for an inter partes review, post-grant review, covered-business-method review, or derivation proceeding | Offers an administrative validity challenge that may affect district-court strategy | Eligibility, filing windows, estoppel, claim-construction posture, schedule, and parallel-case effects must be assessed |
Evaluate each path against speed in reducing project risk, the chance of stopping or narrowing the threat, legal cost, schedule effect, redesign feasibility, licensing leverage and long-term field-of-use coverage, impact on parallel litigation, and the evidentiary burden.
When a declaratory judgment may be available
A specific, credible enforcement threat can create the “actual controversy” required for a declaratory-judgment action seeking a ruling of noninfringement or invalidity. In Cardinal Chemical Co. v. Morton International (1993), the Supreme Court explained that “[m]erely the desire to avoid the threat of a ‘scarecrow’ patent … may therefore be sufficient to establish jurisdiction under the Declaratory Judgment Act.” The practical question is whether the parties’ dispute is concrete, not whether the patent owner has already filed suit.
MedImmune, Inc. v. Genentech (2007) recognized that a threatened injunction and coercive business consequences may satisfy the controversy requirement even before the threatened party stops its conduct. The opinion describes declaratory judgment as “an alternative to pursuit of the arguably illegal activity.” Counsel should examine whether the letter identifies particular claims, a concrete accused activity, a demand to stop, a deadline, or a licensing demand. A vague marketing objection may not create the same jurisdictional posture as a detailed infringement charge.
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Forum, venue, personal jurisdiction, timing, and the risk of an unfavorable claim-construction ruling all matter. Do not file simply to create pressure without a plan for discovery, expert analysis, and the project’s operational needs.
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How PTAB proceedings fit with a construction dispute
The Patent Trial and Appeal Board conducts inter partes review, post-grant review, covered-business-method review, derivation proceedings, and related appeals. The USPTO’s December 2025 Consolidated Trial Practice Guide and current America Invents Act trial rules address institution, briefing, evidence, and parallel district-court litigation.
PTAB review is not an automatic substitute for defending an infringement case. Counsel must compare statutory eligibility, filing windows, estoppel effects, the likely claim-construction approach, expected schedule, cost, and how a petition interacts with an infringement suit or an injunction motion. A petition can affect settlement leverage, but it also creates deadlines and may limit arguments available later.
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- Review prime contracts, subcontract flow-down provisions, intellectual-property indemnities, warranties, notice clauses, suspension rights, and change-order procedures.
- Notify insurers and brokers according to the policy’s requirements, even if coverage is uncertain. Late notice can create a separate dispute.
- Check lender covenants, reporting obligations, draw conditions, and requirements to maintain permits, insurance, or completion dates.
- Ask suppliers and subcontractors for their own patent representations, licenses, indemnities, and records showing which version of a component was delivered.
- Coordinate any owner-facing schedule statement with counsel so it is accurate without conceding infringement or promising a redesign that has not been validated.
If negotiations begin
Decide who can authorize a license, settlement, redesign, or project pause. State whether communications are intended to be without prejudice where applicable, while recognizing that labels alone do not control admissibility. A workable license should specify the covered patent claims and products, named sites and future projects, affiliates, contractors, subcontractors, fields of use, territory, duration, royalty basis, reporting, audits, warranties, indemnities, release of past activity, and what happens if the patent expires or is held invalid.
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Mistakes that make the threat harder to manage
- Ignoring the letter because it is not signed by a court.
- Admitting that a product or method “uses the patent” before claim analysis.
- Deleting drafts, chat messages, field photographs, or obsolete drawings.
- Allowing several employees to give inconsistent responses to the patent owner.
- Redesigning in secret without preserving the original design and the technical reason for each change.
- Stopping safety-critical or code-required work without a reviewed alternative.
- Assuming a supplier’s indemnity automatically covers the owner, contractor, affiliates, and every project site.
- Filing a PTAB petition or declaratory-judgment action without analyzing deadlines, estoppel, venue, and parallel-case effects.
A practical decision record
Maintain a dated risk matrix with one row for each asserted claim and accused feature. Include confidence in noninfringement, available invalidity evidence, redesign cost, schedule effect, safety and code implications, license economics, insurance and indemnity response, and the next decision date. Update it when a supplier responds, a drawing changes, a claim is narrowed or withdrawn, or the patent owner makes a new demand.
The record should show not only the legal theory but also how the team protected public safety, preserved optionality, and avoided unnecessary project disruption. That evidence can be important in negotiations, a declaratory-judgment action, a PTAB proceeding, or a court’s equitable analysis of injunctive relief.
Bottom line for the project team
Treat the letter as an urgent coordination event, not as an automatic stop-work order. Preserve evidence, obtain a claim-specific opinion, verify the patent and its ownership, protect contractual and insurance rights, and use hold points to keep safe, unaffected work moving. Then choose among noninfringement, redesign, licensing, declaratory judgment, and PTAB options on the basis of documented technical facts, schedule realities, and the scope of rights the project actually needs.
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