More Americans than ever are using the Amazon marketplace to shop for household goods, books, food, and more. If we want to find something unusual that we cannot find in stores, it is easy to turn to Amazon and see if any private sellers are offering the item. Individual Amazon sellers make up 58% of sellers in the Amazon marketplace. Surprisingly 73% of Amazon sellers are small businesses with between one and five employees.
The large percentage of individual sellers adds diversity of products to the marketplace. However, sellers have also complained that many retailers sell stolen or counterfeit goods. With more people complaining about counterfeit goods, Amazon launched a new anti-counterfeit enforcement protocol called the Utility Patent Neutral Evaluation Procedure (UPNEP) in 2019. What does this new enforcement procedure do and how will it alleviate the problem of retailers selling fake or stolen goods?
Amazon’s Patent Protection Program Allows Private Parties to Arbitrate Patent Claims
The Amazon patent program allows any company to deposit $4,000 to request an evaluation of patent infringement. In other words, if a company believes an Amazon seller is infringing on its patent, it has the option to pay for a lawyer with experience in patent law to review the claim. After the company files the complaint, they notify the seller. If the seller does not dispute the allegations, Amazon will remove the product from Amazon.
What is the Patent Dispute Process Under Amazon’s New Program?
The only people or businesses who can file participate in Amazon’s new program must hold a utility patent. A utility patent is one that legally protects the functional aspects of the owner’s invention. Amazon refers to utility patents as an “Asserted Patent.” The company refers to the products that are allegedly infringing upon the patent as an “Accused Product.” Those who hold a design patent may not currently use the patent dispute process. Design patents differ from utility patents as they only protect non-functional or ornamental creations.
Filing a patent infringement claim on Amazon is relatively simple. Those who own intellectual property rights can fill out a contact form through Amazon’s website. At the end of the report, the owner or agent must click to agree to the statement that they understand that they are making a good-faith claim about the statements made under penalty of perjury.
If the seller disputes the patent infringement claim, Amazon will assign a patent lawyer to the complaint. The company then files an opening brief that explains the patent infringement claim. The seller then presents a response, and the company that owns the patent can submit a reply.
The Amazon patent attorney then reviews all of the motions and determines as to whether he or she thinks the owner’s patent has been infringed upon or not. The process takes a few months. There is no discovery or filing of additional legal motions. The winner of the claim pays the $4,000 fee.
The Potential Benefits and Negative Aspects of Amazon’s New Patent Program
Many people applaud Amazon for offering a patent dispute option that is relatively affordable and fast. Many Amazon third-party sellers do not live in the United States and are not subject to service of a lawsuit in the United States federal court system. Without the new program, owners of patents would be left without any proper recourse. The program also allows companies to boost their sales after Amazon removes products that infringe on their patents from their marketplace.
Detractors point out that the lawyers who are evaluating claims that are filed may not be impartial because they work for Amazon. They may directly or indirectly place Amazon’s interests ahead of the claims they are evaluating. Another potential problem could involve larger companies initiating the patent dispute process.
If smaller companies cannot afford to pay the $4,000 fee, they might not respond to the complaint. Amazon could then de-list the products. Amazon sellers who fail to pay the deposit or who do not return the required form within three weeks of being notified risk Amazon removing their accounts on the marketplace. In this case, Amazon will return the patent owner’s original $4,000 deposit.
Paul Morinville, a writer for IPWatchdog.com, reports that the poor state of U.S. patent law is part of the reason that Amazon launched its patent process. He makes the point that perhaps Amazon can and will replace federal patent courts due to their large scale and massive control of the online marketplace. If someone who files a claim through Amazon’s process is successful, Amazon stops them from selling which this author contends is akin to an injunction issued by a federal patent court.
The Federal Patent Courts Have Their Problems
The process of defending a patent claim in federal court certainly can be a lengthy and expensive one. The thought of bringing a federal patent lawsuit in Illinois federal district court can be overwhelming. As stressful as the thought of patent litigation can be, sometimes it is a necessary process that patent owners must go through to defend a patent.
Are You Considering Filing for a Patent Claim?
If you are an investor or business person who is considering filing a patent, it is essential to make sure you do so in the most thorough way possible. Expert patent attorneys can help you evaluate your existing prior art, your invention, or your issued patent. Allowing experts to assess the validity and patentability of your interests can help you in several ways. First, it can help you determine the validity of potential patent challenges and set up your patent for the most possible success.
If You Have a Patent Related Issue, We are Here to Help
The skilled Chicago area patent attorneys atAU LLC will evaluate your patent application or patent and expertly guide you through the process. Contact AU LLC today to set up an initial consultation.