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Five actions an Amazon seller should take when a product listing has been removed because of an unjustified design right complaint

September 19, 2018

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Amazon's Utility Patent Independent Evaluation Procedure

 

This article might be of interest to Amazon sellers or their attorneys who might be involved in a new procedure implemented by Amazon.com to evaluate infringement of utility patents.

An Amazon document listing the procedure can be found here which sets out each step in the procedure, the costs and the timeline.  

Amazon has instigated a prescribed procedure in the US to quickly (within 11 weeks) to reach a decision on whether an accused product sold on Amazon.com infringes an asserted US utility patent. The procedure does not relate to US design patents. The procedure is generally as follows:

  1. Patent owner and the accused party agree to join the procedure. If the accused does not sign the agreement, their accused products are automatically taken offline. The signed agreements must be return within 21 days.

  2. The accused party and the patent owner each submit 4000 USD to a patent evaluator. The patent evaluator will be one of Amazon's chosen law firms. This payment must be performed within 14 days of the start of proceedings.

  3. The patent owner submits their statement of case explaining why the accused product infringes the utility patent. Only one claim in the patent may be asserted. Patentee has 21 days to make their case.

  4. The accused party replies with their own statement of case explaining why their product does not infringe. Only non-infringement arguments can be made. Validity of the utility patent is not assessed. The accused part has 14 days to submit their response.

  5. The patent owner has the final say in submission of arguments, providing any response to the defense within 7 days.

  6. Within 14 days of receipt of all submissions, the neutral attorney evaluator will issue a decision in the form of a statement that the product infringes or does not infringe. Detailed reasons are not provided by the patent evaluator. In the case of an infringement finding, only a declaration of such will be provided. In the case of a non-infringement finding, the patentee may be given some cursory explanation.

  7. Amazon will abide by the decision of the evaluator and remove the accused products where infringement has been found.

  8. The winning party will recoup the 4000 USD outlay for the proceedings.

With Amazon being the dominant market place for US sales of many product categories, Amazon's neutral evaluation will replace conventional court procedures because the time and expense of the conventional route often does not justify the value of the market. A streamlined, affordable procedure for assessing infringement of US utility patents will be welcomed by patent owners and sellers alike.

 

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