Taking Down Infringing Products Listed on Amazon

Amazon provides a process for utility patent owners to take down infringing products listed for sale by third parties.  It’s potentially much, much faster and cheaper than litigation, though the remedy is solely the removal of the products from Amazon.  Recovering your past damages still requires litigation.

APEX

The process is called the Amazon Patent Evaluation Express Procedure (APEX), but is also referred to as neutral patent evaluation.  We’ll walk through the process, referring to “patent owner” and the accused “seller,” though the patent owner is often also a seller.

The Process

The process starts when the patent owner identifies products on Amazon that infringe their issued U.S. utility patent.  If the patent and product are of the types that fit the program, then Amazon invites the seller to participate in the APEX/neutral patent evaluation program.

Once the seller accepts, Amazon selects a neutral patent evaluator to hear the case.  Typically, the neutral patent evaluator is a third-party patent attorney outside of Amazon with no interest in the outcome.  Both parties provide $4,000.00 in escrow.  The evaluator returns $4,000 to the winning party and keeps the other as a fee.

The patent owner submits a brief with arguments illustrating infringement of a patent claim by the accused products.  The seller submits a reply brief with arguments illustrating why the accused products do not infringe the patent claim.  The patent owner submits a sur-reply brief addressing the seller’s arguments.  The neutral patent evaluator then decides whether it is more likely than not that the products infringe the claim.

If the seller wins, the seller’s products remain on Amazon and the evaluator returns $4,000 to the seller.

If the patent owner wins, Amazon removes the seller’s products and the evaluator returns $4,000 to the patent owner.

If you are a patent owner with an issued U.S. utility patent, you can take advantage of the APEX/neutral patent evaluation program.  The first step is to register your product brand with Amazon, available at https://brandservices.amazon.com/brandregistry.  The process is simple and provides additional protections and benefits.  Next, you will report the violation at https://brandregistry.amazon.com/brand/report-a-violation, choosing the option for neutral patent evaluation.  You will need to identify the infringing products by their ASIN number, and a claim of your issued patent.

SGB Can Help

At SGB, we are experienced with the APEX/neutral patent evaluation program, both as neutral patent evaluators and represented patent owners to take down infringing products.  While the APEX/neutral patent evaluation program is much more efficient than patent litigation, legal issues such as claim construction and divided infringement can and do affect the outcome of these cases.  If you have an issued U.S. patent and someone is selling infringing products on Amazon, reach out to us to explore your options.  In some cases, we can offer alternative fee arrangements (e.g., flat-fee or contingent-fee).