When a distributor is sued over your product: what to do first
Act within days, not weeks. Notify your insurer and the distributor in writing, secure the distribution agreement's indemnity and notice clauses, and route every further step through the forum in which the claim was actually filed — a national court or the Unified Patent Court. Do not respond to the merits before counsel has read the claim.
A patent claim naming your distributor is, in substance, a claim against your product. The distributor is rarely the intended target. In most cases the claimant is testing whether your side will settle quietly to keep a sales channel open, before deciding whether to pursue the manufacturer directly. Treating the claim as "the distributor's problem" is the most common early mistake, and it is usually the one that costs the most later.
Why the claim reaches the distributor first
Claimants often sue the distributor rather than the manufacturer because the distributor is easier to serve, sits inside the jurisdiction where the goods are sold, and holds stock that can be targeted for an injunction. None of that says anything about whether your patent position is strong or weak. It says only where the claimant chose to start.
Basis
Two frameworks decide where such a claim can land. Since 1 June 2023, a European patent can carry unitary effect across participating states under Regulation (EU) No 1257/2012, with translation arrangements set by Council Regulation (EU) No 1260/2012. Disputes over a unitary patent, and over most European patents that have not been opted out, sit with the Unified Patent Court under the Agreement on a Unified Patent Court. If the claim instead concerns a purely national patent, or a European patent still opted out of that system, a national civil court applies its own procedural rules. A parallel track exists at the border: customs authorities can act on suspected infringing goods under Regulation (EU) No 608/2013, independently of any court claim already filed against the distributor.
Knowing which of these applies changes almost everything that follows — the response format, the available defences, and how quickly a provisional measure can be granted against the distributor's stock.
Practical consequence
For the distributor, being sued does not by itself decide anything about your patent's validity. It does, however, start deadlines that run regardless of who is ultimately at fault. There is usually an answer deadline for the distributor, and often a separate, shorter notice deadline under your own distribution agreement. Missing either deadline can cost more than the underlying dispute itself: a default judgment against the distributor, or the loss of your contractual right to take over the defence.
There is also a commercial consequence that is easy to underrate. Retailers and distributors tend to react to a patent claim faster than any court does, sometimes pulling stock before a single hearing takes place. Managing that reaction is a business decision, not a legal one, and it should not be left until after the legal deadlines have passed.
What to do first
- Distributor: forward the claim and every exhibit to you within 24 hours of service, in full, not summarised.
- You, as rights holder: open the distribution agreement and identify the indemnity, notice and step-in clauses before replying to anyone.
- Both parties: notify your respective insurers in writing, even if cover is uncertain at this stage.
- Patent counsel: confirm which forum the claim was filed in — a national court or the Unified Patent Court — since the response format and timing differ.
- Patent counsel: check the register entry behind the asserted patent, including whether it carries unitary effect or has been opted out of the Unified Patent Court system.
- You and the distributor: agree in writing who leads the defence before any submission is filed, so that only one side speaks to the claimant.
Who decides
| Forum | What it examines | Governing instrument |
|---|---|---|
| Unified Patent Court | Infringement and validity of a European patent with unitary effect, or a European patent not opted out of the system | Agreement on a Unified Patent Court |
| National civil court | Infringement of a nationally validated European patent, or a purely national patent | Applicable national procedural rules |
| Customs authorities | Suspected infringing goods held or moving at the EU border, as a parallel track to any court claim | Regulation (EU) No 608/2013 |
In every forum, the claimant carries the burden of showing that the distributed product falls within the patent's claims. The defence carries the burden on any invalidity argument it chooses to raise. Neither burden shifts because the defendant named on the claim happens to be a distributor rather than a manufacturer.
Branches
If the distribution agreement makes you responsible for patent risk, take over or fund the defence at once. The distributor's answer deadline is already running and does not wait for an internal review on your side.
If the disputed product embeds a component built jointly with an outside developer, the underlying invention's ownership can itself become contested alongside the infringement claim; see When a development partner claims joint ownership step by step guide for the first moves in that separate dispute.
If part of the right in question sits on a distributed ledger rather than solely in a patent register, the same urgency applies to that layer; see When a right is pledged on-chain and its limits.
If the claimant has also triggered a customs measure at the border, treat it as a second, faster-moving track under Regulation (EU) No 608/2013, not as part of the court proceeding, since the two run on different clocks.
Limit
This page does not assess the merits of the patent claim, does not draft the defence, and does not tell you whether the asserted patent is valid. It also does not verify who actually stands behind the distributor or the claimant — that is a separate question about the counterparty itself, not about the patent. For a jurisdiction-specific view of what can be established about a counterparty, see Counterparty in Czechia explained.
Related situations
The same first-response order applies when a patent office grants your invention to someone else instead: What to do first in this situation and the immediate steps differ mainly in who receives notice first and which register entry moves.
Verified
Reviewed 12 March 2025. Sources: Agreement on a Unified Patent Court; Regulation (EU) No 1257/2012; Council Regulation (EU) No 1260/2012; Regulation (EU) No 608/2013. Our collection and cross-checking approach is described in Methodology: collection, cross-checking and dating in detail.
FAQ
What is the first step when a distributor is sued over your product?
Get the full claim and exhibits from the distributor immediately, then check the distribution agreement's indemnity and notice clauses before either party responds to the merits. Deciding who speaks to the claimant comes before deciding what to say.
Which deadline is already running?
The distributor's answer deadline starts on service of the claim and is fixed by the forum's own procedural rules, not by either party. A separate, usually shorter notice deadline under your distribution agreement often runs in parallel, and it is the one most often missed.
Who decides, and on what evidence?
The Unified Patent Court or the competent national civil court decides, depending on where the claim was filed and whether the patent carries unitary effect or has been opted out. The claimant must show the product falls within the patent's claims; the defence carries the burden on any invalidity it raises.