When a supplier is accused of infringing a third party: what to do first
A supplier's notice that a third party is asserting a patent claim against goods you distribute starts a clock you do not control. Read the notice literally, identify the patent number, and check whether customs has already suspended release of the shipment. Do not admit infringement or destroy stock before that check is complete.
Basis
Two separate legal tracks can apply, and they do not always move together. If the goods have been stopped at an EU border, the detention procedure follows Regulation (EU) No 608/2013. If the underlying right is a European patent with unitary effect, disputes over its validity and infringement fall to the forum set out in the Agreement on a Unified Patent Court, together with Regulation (EU) No 1257/2012 and Council Regulation (EU) No 1260/2012 on the applicable translation arrangements.
Which track applies depends on where the goods physically are and what kind of patent is behind the claim. A warning letter alone does not trigger either regime; a customs suspension or a filed claim does.
Practical consequence
These two tracks run independently of each other. A customs suspension under Regulation (EU) No 608/2013 can hold your shipment even while the substantive patent dispute is still being framed between the rights holder and your supplier. Your supplier's own exposure under the Unified Patent Court framework does not automatically become yours, but your distribution activity can be treated as a separate act of infringement in its own right.
The same triage logic applies elsewhere in intellectual property disputes: What to do first in this situation and the practical consequence overlap whenever ownership of the underlying work is contested rather than settled. The first days decide who controls the record, not who is ultimately right.
What to do first
- You request the patent number, jurisdiction, and the claimant's identity from the supplier in writing, on the same day the notice arrives.
- You check whether the shipment is subject to a customs suspension under Regulation (EU) No 608/2013, either directly with the customs authority or through the supplier's freight documentation.
- Your decision-maker is notified within the first working day; do not wait for a formal claim before escalating internally.
- You preserve invoices, shipment paperwork, and every message exchanged with the supplier about the goods in question, unaltered.
- Your counsel establishes whether the patent has unitary effect or falls within the jurisdiction of the Agreement on a Unified Patent Court.
- You avoid any statement that could be read as an admission, and avoid destroying or reselling the disputed stock before that assessment is complete.
Who decides
The decision-maker depends on which track the dispute has entered. A customs suspension is decided by the customs authority applying Regulation (EU) No 608/2013 to the specific shipment. The substantive question of infringement, where the patent has unitary effect, is decided by the Unified Patent Court under the Agreement on a Unified Patent Court. Evidence in that forum centres on the patent's claims, the accused product's technical characteristics, and the supply chain documentation connecting the goods to the supplier.
| Situation | Governing act | Who decides |
|---|---|---|
| Goods detained at an EU border | Regulation (EU) No 608/2013 | Customs authority applying the detention procedure |
| Patent has unitary effect | Regulation (EU) No 1257/2012 | Unified Patent Court, under the Agreement on a Unified Patent Court |
| Classical European patent, not opted out | Agreement on a Unified Patent Court | Unified Patent Court |
| Translation of the granted unitary patent | Council Regulation (EU) No 1260/2012 | Mechanism only; not a forum for the infringement dispute |
Branches
If the goods are already stopped at the border, your immediate task is procedural: respond within the customs window under Regulation (EU) No 608/2013 before addressing the underlying patent question at all. If no customs step has occurred and the notice is purely a warning letter from a rights holder, your task is evidentiary: gather the supplier's own file on the technology before any deadline the letter proposes. If the patent is confirmed as one with unitary effect, prepare for a single forum across the participating states rather than parallel national proceedings — the pattern seen when When a marketplace delists the collection and the deadline forces a similarly fast choice between platforms and forums.
What this page does not resolve
This page does not calculate damages, does not interpret your supply or indemnity contract with the supplier, and does not tell you whether the underlying patent is valid. It also does not cover a national court's own procedure where the patent sits outside the Unified Patent Court's jurisdiction; that depends on the country where the claim is filed. If your supplier is itself acting through a subprocessor in a wider delivery chain, cross-check Subprocessors, including local delivery partners and its limits before assuming who is contractually responsible for the response.
Sources and verification
This page was last checked in November 2024. Primary sources: Regulation (EU) No 608/2013, Regulation (EU) No 1257/2012, Council Regulation (EU) No 1260/2012, and the Agreement on a Unified Patent Court. Where a dispute also touches on verifying who your counterparty actually is before you rely on their account of events, the sourcing logic in Counterparty in Latvia and the deadline for checking a counterparty's own filings follows the same discipline: source, route, and limit, stated plainly rather than assumed.
Related situations
This situation sits within a set of related first-response scenarios, including When an ex-employee appears as an inventor elsewhere: what to do first, which follows the same triage logic: identify the record, freeze the position, escalate on the same day.
FAQ
What is the first step when a supplier is accused of infringing a third party?
Get the patent number and claimant's identity from the supplier in writing, and check the same day whether customs has already suspended the shipment under Regulation (EU) No 608/2013.
Which deadline is already running?
If customs has suspended goods, a response window under Regulation (EU) No 608/2013 is already running from the date of notification. If only a warning letter has arrived, no statutory clock has started yet, but the letter itself may propose one.
Who decides, and on what evidence?
A customs authority decides on detention under Regulation (EU) No 608/2013. Substantive infringement, where the patent has unitary effect, is decided by the Unified Patent Court under the Agreement on a Unified Patent Court, on the patent's claims and the product's technical file.