When a supplier refuses an indemnity: what to do first
A refusal does not pause the underlying patent claim. Notify the supplier in writing under the indemnity clause, and preserve the notice deadline it sets. Continue your own defence against the claimant in parallel, on its own schedule. Treat the indemnity dispute and the patent dispute as two separate tracks, decided by two different forums, on two different clocks.
Basis
An indemnity clause belongs to the supply contract and its governing law. No EU regulation compels a supplier to honour it; that question is answered by the contract wording, not by patent rules. Two adjacent EU instruments still shape the parallel track. Where the patent behind the claim is a unitary patent, jurisdiction over its validity and infringement sits with the court created under the Agreement on a Unified Patent Court, following Regulation (EU) No 1257/2012 and Council Regulation (EU) No 1260/2012. Where the disputed goods have been stopped at an EU border, a separate procedure under Regulation (EU) No 608/2013 runs on its own timetable, independent of the indemnity correspondence.
Practical consequence
Two clocks start running at the same moment. One is the contractual notice period the indemnity clause sets. The other is whatever procedural deadline applies to the underlying patent claim itself. Missing either weakens your position, regardless of what happens with the other. A supplier's refusal does not extend or suspend the deadline you owe to the claimant or to a court.
A related fact pattern arises when the disputed asset is a database the supplier built, rather than a patent. What to do first in this situation and the ownership question is addressed on its own page, since indemnity is not the trigger there.
What to do
- Send the supplier written notice of the claim, citing the indemnity clause and the deadline it sets. This is your task, not counsel's, though counsel should draft the wording.
- Ask in-house counsel to log both clocks — contractual notice and litigation deadline — on a single tracker, checked weekly.
- Instruct whoever handles the underlying claim to respond on time regardless of the supplier's position on indemnity.
- If goods are detained at an EU border under Regulation (EU) No 608/2013, respond to the customs authority within its own deadline, separately from the supplier correspondence.
- If the patent is a unitary patent, confirm with counsel before any filing whether the matter falls to the Unified Patent Court.
- Keep a written record of every supplier refusal and every reason given; it becomes evidence if you later sue the supplier for breach of the indemnity.
Where evidence review touches personal data of individuals named in supplier correspondence, run it against the Legitimate interest assessment: summary in detail before circulating documents further.
Who decides
| Forum | Trigger | Timing |
|---|---|---|
| Court or forum named in the supply contract | dispute over the indemnity clause itself | set by the contract, not by patent rules |
| Unified Patent Court | infringement or validity of a unitary patent | procedure under the Agreement on a Unified Patent Court |
| National customs authority | goods suspected of infringing IP rights stopped at the border | procedure under Regulation (EU) No 608/2013 |
Branches
If the contract names arbitration, the indemnity dispute goes there, on the timetable that clause sets, not to a state court.
If the underlying patent is a classical, non-unitary patent, its validity and infringement stay with the national court seised of the claim. The Unified Patent Court has no role in that scenario.
If the goods have already cleared customs, Regulation (EU) No 608/2013 no longer applies. What remains is purely contractual, and, if litigated, patent-related.
If the dispute instead concerns tokenised rights held by a custodian rather than physical goods, When custody is held by a platform explained covers the first steps for that situation.
Limit
This page does not decide whether your indemnity clause covers this particular claim; that reading depends on the wording of your contract. It does not calculate either deadline for you, and it does not tell you whether the underlying patent is unitary or classical. Both answers require the file.
Verified
Checked against: Regulation (EU) No 608/2013; Regulation (EU) No 1257/2012; Council Regulation (EU) No 1260/2012; Agreement on a Unified Patent Court. Before escalating against the supplier, a due-diligence report such as Counterparty in Austria step by step can confirm the supplier's registered details and standing on file.
Related situation: The product is redesigned mid-dispute patent.
FAQ
What is the first step when a supplier refuses an indemnity?
Put the refusal and your notice on record in writing, citing the indemnity clause. Do this before anything else, and keep responding to the underlying claim on its own deadline.
Which deadline is already running?
At least two: the contractual notice period under the indemnity clause, and any procedural deadline attached to the patent claim itself. If goods sit at an EU border, a third deadline under Regulation (EU) No 608/2013 may also be running.
Who decides, and on what evidence?
The indemnity dispute is decided by whatever forum the supply contract names, on the contract's wording and your written notices. The patent question, if litigated, is decided separately — by the Unified Patent Court for a unitary patent, or by the national court otherwise.