What if your Amazon patent violation report against an infringing product is denied?
It seems so easy for patent owners. Fill out Amazon’s Report a Violation form by identifying your patent and the ASIN of each infringing product. Now just sit back and watch the infringing listings get taken down, right? Instead, you get a bot-like response saying that the accused product is not substantially similar to your patent. What seemed so easy at first has become arbitrary and potentially frustrating. How do you use the Amazon patent violation system effectively?
Need to enforce your patent against infringing product listings on Amazon? Call US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to see how we can help you get infringing products removed from the e-commerce platform.
How to escalate your Amazon patent violation case
What are your options when Amazon does not take down the infringing listing in response to your patent violation report submission? On the Brand Registry dashboard, you may have the option to escalate the Amazon patent violation matter. Will it help? Do not reply to the bot-like email containing the initial denial of your request since that message came from a no-reply address. You need to login to your Brand Registry account and submit the proper request to escalate your patent infringement case.
Make sure you specify that your patent is a utility or design patent.
What if your patent escalation request is rejected?
The Amazon patent violation reporting system has some limitations. For starters, it is challenging to provide a detailed explanation of the reasons why you believe the products are infringing. However, Amazon’s online reporting system does not facilitate such disclosures. Even if you actually provided more detailed arguments regarding infringement, can you be sure that the IP team at Amazon is actually reviewing this stuff carefully?
Furthermore, it is difficult to tell if you are dealing with a human or automation. The bot-like automated emails from Amazon even acknowledge that they use a “combination of automated means and expert human review in the processing and decision-making” of your request. I’m not sure about the expert human review, but the automated means can be quite apparent.
Using the online reporting system to explain why the initial denial is wrong can be an exercise in futility.
How our firm helps sellers use the Amazon patent violation system
Our firm can contact Amazon’s patent evaluation department to request a neutral patent evaluation on your behalf. For design patents, the goal is to get an invitation to the Amazon Design Patent Neutral Evaluation Procedure. For utility patents, you want APEX. In either case, you will have a couple of weeks to complete, sign and return the neutral evaluation agreement.
Amazon will then send the neutral evaluation agreement to each seller identified in the patent owner’s agreement. The accused seller will have three weeks to return their signed evaluation agreement. If a seller does not participate in the evaluation, their listing will be removed.
What happens after an Amazon seller sends their signed evaluation agreement?
After receiving a completed agreement from one or more sellers, Amazon will select a neutral evaluator. The patent owner and accused sellers will have a deadline to wire the potentially refundable deposit for the evaluator. Currently, the evaluator deposit amount is $4,000 per party. The winner gets a refund of this deposit.
If multiple sellers submit deposits and the Patent Owner wins, the evaluator will keep $4,000 from the seller’s deposits and donate the remainder of the sellers’ deposits to a nonprofit organization. That way, whether the Patent Owner or seller wins, the evaluator does not keep more than $4,000.
What is the schedule of an Amazon patent case?
After the Patent Owner and seller have timely submitted their deposits, the evaluator will set a schedule for submitting written arguments. Generally, the Patent Owner has 14 days to submit its initial arguments.
Sellers have 14 days to respond with their arguments.
The Patent Owner has 7 days to submit an optional reply.
Within 14 days of the reply date or the Patent Owner’s waiver of the reply, the evaluator will send a decision. The decision can be only one of two options:
- Patent Owner is likely to prove that the Accused Product infringes the asserted patent; or
- Patent Owner is not likely to prove that the Accused Product infringes the asserted patent.
In the first scenario where the Patent Owner wins, the evaluator will not provide reasoning. If the Patent Owner loses, the evaluator will provide a brief explanation of why the Patent Owner is unlikely to prove infringement. The parties may not contact or question the Evaluator regarding the decision.
Can you appeal or request reconsideration of the evaluator’s decision?
No, you cannot request an appeal or reconsideration of the evaluator’s decision. If you prevail against the accused infringers in court, you can submit a copy of the court order to Amazon.
