Most people have had a moment where they’ve said, “I wish they hadn’t put that in writing.” There’s also no shortage of high-profile litigations where a company’s internal emails and memos became very useful to the opposing side. When accusations of patent infringement arise, everyone at the company needs to tread carefully in how they communicate internally and externally. Here are seven phrases you should absolutely avoid putting in writing.

 

1. “Let’s do it anyway.”

When someone raises a potential infringement issue, never respond with anything that sounds like, “Let’s do it anyway.” Even if the goal is to work around a patent or prevail on invalidity, expressing a dismissive attitude toward legal risks in writing can be harmful. This line implies willful infringement. Judges and juries may see this as evidence that you knowingly ignored a legal risk. This is something to avoid, because a finding of willful infringement can result in damages being tripled.

What to do instead: If you need to discuss a path forward, stick to neutral, fact-based language like, “Let’s evaluate our options,” or, “We’ll need to review this with legal.” Keep discussions professional and focus on mitigating risk.

 

2. “Just change it a little so it’s different.”

Trying to work around a patent is often a legitimate strategy, but it can easily be taken out of context in writing. A vague phrase like “just change it a little” could suggest to a court that you were consciously attempting to make superficial changes to mask infringement. Further, this can also imply that the company did not take the issue seriously because it does not account for possible infringement under the doctrine of equivalents.

What to do instead: If you need to discuss potential design changes, frame the conversation carefully. Try something like, “We need a solution that avoids overlap with existing patents,” or “we need to talk with our lawyers about ideas for avoiding existing patents,” and involve legal counsel in discussions from the start.

 

3. “We’ll get caught if we…”

Putting words like “get caught” in writing is almost like painting a target on your back. It makes it look like you already know you’re infringing and are just hoping to avoid detection. Courts look very unfavorably on any language that suggests a cover-up or an attempt to fly under the radar—which can also support a finding of willful infringement.

What to do instead: If there’s a concern about patent infringement, the best course of action is to consult legal counsel and discuss the matter objectively. If anyone asks about the situation in writing, the response should include a statement along the lines of “we are consulting with our attorneys regarding the next steps.” Avoid even the hint of trying to avoid the issues in emails or memos.

 

4. “We’re not paying for a license.”

Negotiating a licensing deal is one thing, but declaring outright that you refuse to pay for a license can look bad in court. Such statements can make your company look unreasonable, especially if it’s later shown that licensing discussions would have been possible. It also can lead to enhancement of damages if the infringement is found to be willful.

What to do instead: Use neutral language to express your position, such as, “Let’s evaluate the benefits of licensing versus developing alternative solutions.” This leaves room for flexibility while keeping the door open for a potential negotiation.

 

5. “You mean we can’t just copy their design?”

A statement like this, even in jest, can be catastrophic if it ends up in court. It makes it look like copying was the intent from the beginning, which is the exact opposite of what you want to convey. Courts look for evidence of an independent development process to counter infringement claims. Avoid sarcasm and snide comments in writing because an opponent will not give a charitable reading to those statements.

What to do instead: Focus on positive, proactive language, like, “Let’s develop our own solution that meets our needs,” or, “We want to explore unique approaches.” Emphasizing innovation and differentiation helps to show good faith in developing your own products.

 

6. “The lawyers will handle it.”

In patent disputes, saying “the lawyers will handle it” might sound like you’re dodging responsibility, brushing off the risks, or hoping to avoid engaging in the necessary discovery work that comes with a litigation. This could look like indifference, which can work against you, especially—again—in cases where willful infringement is asserted. It’s also dangerous to assume that legal counsel will solve everything without involvement from product teams.

What to do instead: A better approach is to express a collaborative commitment to resolving the issue, like, “Let’s coordinate with legal to understand the best approach” or “we need to talk with our outside attorneys soon to make sure we handle this the right way.” This shows that your team is engaged and takes the issue seriously.

 

7. “We can delay this until they run out of money.”

This one is particularly problematic. If you’re accused of patent infringement, appearing to stall in the hope that the other side exhausts resources can suggest bad faith. Courts generally don’t look kindly on strategies that aim to exploit an opponent’s financial limitations instead of addressing the legal issue head-on.

What to do instead: If there are concerns about timing, try something like, “Let’s follow our standard legal process.” Keeping language neutral ensures that you’re not implying any unethical strategies.

 

Final Thoughts: Think before you write and involve attorneys early.

These seven phrases are the kinds of words that turn a minor accusation into a major liability. In any potential infringement situation, every document, email, or memo could be scrutinized. Aim to maintain a neutral tone, focus on seeking solutions, and involve legal counsel from the outset. Clear, professional language protects your company and positions it to defend its actions based on genuine business needs—not avoidable errors in communication.

Also, when a company receives an allegation of patent infringement, it is important that the company involves legal counsel (either in-house or outside) early. Communications with attorneys that seek or provide legal advice are protected from discovery by the attorney-client privilege and work-product doctrines. However, internal emails between non-lawyers that discuss legal matters do not necessarily enjoy those same privileges, and thus are more likely to be subject to discovery.

 

 

 

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Harness IP is celebrating more than 100 years as an intellectual property law firm. Founded in 1921, the firm currently holds a No. 2 ranking from IAM Media for providing counsel to 44 companies with the largest portfolios of issued U.S. patents. The firm also ranks No. 6 for filing the most patent applications on behalf of those companies. Harness IP’s attorneys and IP professionals focus exclusively on patents, trademarks, global IP management, intellectual property litigation and other IP rights. The firm has offices in metropolitan Dallas, Detroit, St. Louis, and Washington, D.C. Visit www.harnessip.com for more information.