Why should Amazon sellers care about patents?
Competition is fierce between Amazon sellers. As soon as an innovative product takes off, expect copycat products to follow at lower prices. How do you get the right patent for Amazon products? How can Amazon sellers use patent protection to grow sales?
Need to protect your Amazon product with patents? Call US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to explore how we can help you get the right patents to protect your Amazon sales.
Which patents make the most sense for your Amazon products?
Not every product will deserve patent protection. Those that require protection will likely involve some strategic considerations. Are you trying to protect its appearance (how it looks) or functionality (how it works)? Here’s a helpful article on the differences between design patents and utility patents.
Most products tend to lean towards one category or the other depending upon the unique features. In certain cases, a product may require both utility and design patent protection.
Timing is critical: When is it too late to apply for patents?
Ideally, you want to file your patent application before any public disclosures or sales. Doing so will enable you to file foreign patents if you choose. Also, you will have a better shot at being first to file with the US Patent and Trademark Office.
Many Amazon business owners do not realize this. So they start selling their unique products without filing any patents. All is not lost. Though you will not be able to obtain foreign patents, you can still apply for US patents within one year of your earliest date of public disclosure. Remember that this 1-year grace period applies to US patents only.
How would a patent be specially drafted for an Amazon business?
In a typical infringement lawsuit in court, the owner of a utility patent would have several claims to assert against an accused infringer. Unlike patent litigation in court, an Amazon patent violation will involve only a single claim. For design patents, this is not an issue since the sole claim will consist of the drawings.
With a utility patent, however, the patent owner must choose a single independent claim to assert against the accused seller listings. Whether or not those accused products will be deemed infringing will depend on the specific language of your selected claim.
Therefore, it is critical to write well balanced independent claims. The independent claim must be broad enough to cover competitive products, and yet narrow enough to be unique over the prior art. Your independent claims should aim for this sweet spot.
How to get balanced utility patents with broader claims
Where is that sweet spot? If you have to err on one side, should go for broader or narrower claims?
In my opinion, aim for broader claims if you plan on using your patents only on Amazon patent neutral evaluations. Here’s why. APEX and design patent neutral evaluations by Amazon do not allow arguments regarding the invalidity of the claims. In other words, accused sellers cannot argue why the patent fails to claim anything new.
Instead, Amazon sellers are allowed to show that the accused products were sold prior to the priority date of the asserted patent. Accused Amazon sellers, therefore, cannot attempt to invalidate patents by using prior art.
Unlike an invalidity challenge brought by defendants in patent infringement litigation in federal court, an Amazon patent case does not provide accused infringers with the option to invalidate patents.
Broader claims provide patent owners with stronger infringement arguments while limiting potential invalidity attacks in Amazon neutral patent evaluations. The unavailability of an invalidity challenge in an Amazon patent evaluation tips the scales toward patent owners. Patent owners should check whether the accused products were sold prior to the priority date of their patent.
Here is a helpful post on how to understand patent claims. In particular, your independent claim should not recite too many features if you can avoid it. Also, you can have more than one independent claim in a utility patent. For example, having three independent claims in a utility patent gives you more weapons to choose from in blocking sales of similar products by other Amazon sellers.
How to get design patents to protect how your Amazon products look
Though certain products serve a functional purpose, the unique features may be primarily visual. For example, you might sell a coffee mug that looks cool or funny. The cup still serves a functional purpose, but what makes the product unique is the appearance.
Design patents protect the ornamental appearance of such products. Recognize, however, that a single design patent typically covers only a single version. If you have a product line with multiple versions, you may need to file a separate design patent application for each version you wish to protect.
How do you enforce patents against Amazon sellers copying your patented products?
After obtaining your patents, you can start enforcing them against Amazon sellers by reporting the patent violations here. If that does not work, then take the next steps to enforce your patents against infringing Amazon listings.
Ready to protect your Amazon business?
Call US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to see how we can help you grow your Amazon business with strong patent protection.
