One possible defense litigation strategy (note: I am not a lawyer, and this is not legal advice, but mere hypothetical supposition, and so any feedback from those more in-the-know is welcome):
0. Stop using any devices that might infringe, at least in infringing ways. (This should actually be done as soon as you can figure out what the nature of the infringement is, even if a lawsuit hasn't been filed yet.)
1. Cop to infringement. Much of the expense in a lawsuit is discovery related to your activities as well as determination of the proper meaning of the asserted claims. If you admit infringement up front, all of this cost is eliminated.
2. Focus on the damages portion of the trial. The actual value of your infringement is minimal - you're scanning documents to e-mail, and unless you do this on such a routine basis that it's a big part of your business model, the plaintiff will be hard-pressed to show that the actual damages are worth more than some small fraction of what you paid for the infringing machine. The reason that Samsung gets dinged for hundreds of millions is because they sell millions of phones, but all you're doing is using one device on an occasional basis. Also, there are no statutory damages in a patent lawsuit, unlike copyright.
3. Pay up the minimal damages.
4. Laugh hysterically. The US generally requires that each side pays its own court costs in patent cases, and the fact that you were not a willful infringer (because you stopped infringing once you knew what the infringement was) should help cement the fact that there were no extraordinary circumstances justifying you paying both sides. Your defense was of minimal expense, but just to avoid court sanctions, the plaintiff will have to expend significant amounts of time and effort doing their due diligence to file the case.
0. Stop using any devices that might infringe, at least in infringing ways. (This should actually be done as soon as you can figure out what the nature of the infringement is, even if a lawsuit hasn't been filed yet.)
1. Cop to infringement. Much of the expense in a lawsuit is discovery related to your activities as well as determination of the proper meaning of the asserted claims. If you admit infringement up front, all of this cost is eliminated.
2. Focus on the damages portion of the trial. The actual value of your infringement is minimal - you're scanning documents to e-mail, and unless you do this on such a routine basis that it's a big part of your business model, the plaintiff will be hard-pressed to show that the actual damages are worth more than some small fraction of what you paid for the infringing machine. The reason that Samsung gets dinged for hundreds of millions is because they sell millions of phones, but all you're doing is using one device on an occasional basis. Also, there are no statutory damages in a patent lawsuit, unlike copyright.
3. Pay up the minimal damages.
4. Laugh hysterically. The US generally requires that each side pays its own court costs in patent cases, and the fact that you were not a willful infringer (because you stopped infringing once you knew what the infringement was) should help cement the fact that there were no extraordinary circumstances justifying you paying both sides. Your defense was of minimal expense, but just to avoid court sanctions, the plaintiff will have to expend significant amounts of time and effort doing their due diligence to file the case.
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