How do you get patents that will stop Amazon sellers from taking your sales?
So you’ve created a new product. Do you need a design or utility patent, or both? How do you know if your patent claims are any good? What matters most in getting patents to stop Amazon sellers from copying your product? Let’s tackle these questions.
Need a useful patent that will actually stop competitors from taking your sales? Call US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to explore working with us.
What patents will help you remove infringing Amazon listings?
Ideally, you want to build IP rights with both utility and design patents. A utility patent, though broader, can take years to obtain. In the meantime, design patents are quicker and cheaper to obtain. Furthermore, design patent applications enjoy a high rate of success with an approximate 84% approval rate.
How do you get a strong utility patent that will shut down competing product listings on Amazon?
When it comes to obtaining utility patents, many applicants focus solely on price. While cost is an important factor, it is not the primary issue if you intend to enforce your utility patent against Amazon sellers stealing market share. Your focus should be on the patent claims.
In particular, you want to focus on the number of independent claims and the coverage. In an Amazon utility patent evaluation known as APEX, you can only choose one independent claim to assert against the accused listings. So you want to have a few independent claims from which to choose.
How many independent claims should your patent include?
Generally, it’s easier to avoid infringing a utility patent having only a single independent claim versus a patent with two or more independent claims. If your utility patent contains only one independent claim, you may be leaving the door open for competitors to grab market share.
Three independent claims would certainly be better than one. If an accused product does not infringe your first independent claim, you still have two fallback options.
Broader claims vs. Narrower claims: Choose coverage or validity?
As for coverage, broader claims typically recite fewer features. It seems counterintuitive, but less is more. When you have an independent claim that recites 10 features, for example, then an accused product must have each of those 10 features in order to infringe your patent.
By omitting just one of those claim features, a competitor can avoid literal infringement. You would then have to argue infringement by the doctrine of equivalents (DOE) which would be a more difficult argument to win.
Broader claims present a higher risk of invalidity than that of narrower claims. In Amazon patent evaluations, however, invalidity is not an available defense for accused sellers except for their own prior sales. Therefore, patent owners may want to consider pursuing broader claims if they do not intend to litigate in federal court, but only want to enforce patents on Amazon.
How do you get design patents to take down listings of similar products?
Design patents enable you to stop others from selling similar looking products. While typically narrower than utility patents, design patents can become an important tool to stop Amazon sellers from selling products that appear visually similar to your patented product.
Getting a design patent may seem simple, but obtaining the right design patents to stop competitors will require strategy. A patent attorney with experience in design patent infringement litigation may be able to counsel you on the strategic use of broken lines to broaden the scope of your coverage.
How do you use your patents to shut down infringing product listings?
Once granted, you can report patent infringement against similar product listings by filling out Amazon’s report patent infringement form. Patent owners enrolled in Brand Registry may escalate the dispute if submission of the infringement report is unsuccessful.
When the form submissions and escalations fail, you need to consider a request for a design patent neutral evaluation. Our team is experienced in crafting these requests for Amazon neutral patent evaluations.
What are your options when Amazon sellers avoid patent infringement?
Many patent owners find out that their patents are powerless to stop the sales of similar products. Unfortunately, the deficiency in patent coverage is often discovered too late. You cannot go back in time to reapply although you might still have time to file a reissue application.
How can you prevent this tragedy and protect the sales of their innovative products? Work with a patent attorney who has patent infringement experience to employ IP strategies to crush the competition. Not only should you file patents with broader coverage, you should adopt a strategic plan that includes tactics such as filing continuing applications to extend your patent coverage.
Say you had a decent patent, but Amazon sellers have found ways to design around it. What are your options?
If you still have at least one pending application, then you may have the opportunity to file child applications to pursue different claim coverage.
If not, consider designing a new generation of products with improved features and modifications. You can then file patents on the new and improved product.
Too late to patent: How to use copyright registrations
Last, but not least, consider filing copyright applications. Not every product will be eligible for copyright protection, so check if your product meets the requirements for copyright registration.
One advantage of filing copyright applications is that you can still apply no matter how long you have been selling your products. Applying for copyright registration is not under the same deadlines as patenting.
Ready to get patents to protect your sales from Amazon sellers?
Patent agents and trademark lawyers are incapable of obtaining and enforcing patents. Why work with someone who cannot protect your sales from copyists? Call US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to explore how we can get you the right patents to protect your sales.
