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Amazon Patent Attorney Can Help Navigate the Neutral Evaluation Process

With millions of products to manage an attractive platform for third-party sellers, dealing with the unauthorized sale of patented goods is a significant challenge for Amazon. To address this issue, Amazon implemented the Neutral Patent Evaluation Process, a process intending to level the playing field between patent holders and those who are accused of infringement. An experienced Amazon patent attorney at ESQgo®, PC can help business owners navigate the process.

The Unauthorized Sale of Patented Goods

Infringing on someone else’s patent is extremely easy to do. In order to steer clear of it, sellers need to know exactly what it is and how it can be avoided. Also, it is important to note that if a seller discovers that they have committed patent infringement, ignorance is not considered a valid defense. This is why it is imperative to have counsel onboard throughout the process to ensure compliance with Amazon’s infringement policy.

Patent Infringement Defined

Patent infringement, or the unauthorized sale of patented goods, occurs when there is unapproved use of a product which is patented. It may include:

  • The making, manufacturing, or production of a patented good
  • Using a patented product in any way for profit or gain
  • Selling a patented good to a distribution or manufacturing company

In order for a patent to be protected under the law, it must be filed with the United States Patent and Trademark Office. 

How to Avoid Patent Infringement

In order to prevent selling unauthorized patented goods, sellers need to be familiar with utility patents and what they cover. A utility patent encompasses the functional use of a product. This type of patent can be difficult to prove as the aesthetics of the goods in question do not matter. Instead, the question becomes whether or not the product being sold performs the same function as the product that has been patented. To avoid a utility patent infringement claim, a seller needs to ensure the product they are selling does not do the same thing as a product that has been patented. This can be a hard call to make, and the assistance of a patent attorney may be needed to make the determination.

Amazon Patent Infringement Cases Are Unique

Trademark and copyright holders have long enjoyed protection from Amazon that hasn’t always been available to patent holders. Owners of registered trademarks, for example, can protect their brand by registering with the Amazon Brand Registry. Generally speaking, Amazon will typically take quick action to protect the copyright and trademark rights of their sellers

Unfortunately, patent cases are more complex. Patent infringement claims require careful analysis to determine whether an infringement has occurred. This is typically handled with the help of an experienced Amazon patent attorney.

In the past, Amazon would handle claims by removing the item from the store of the seller who allegedly infringed upon the patent. In most cases, the seller’s only option would be to appeal the suspension. If the seller was unable to resolve the issue, their sole remaining option would be to pursue arbitration against Amazon or litigation against the complainant – a costly process that most small businesses cannot afford. 

An Amazon patent attorney can report patent infringement to Amazon on your behalf to properly document everything for potential litigation. We hope it won’t come to that, but creating a paper trail is a best practice. In addition to a cease and desist letter asking the violating sellers to stop, we will submit notice to Amazon including your patent number, ASIN number, product URL, as well as supporting evidence demonstrating the infringement claim. 

How the Amazon Neutral Evaluation Process Works

To initiate the process, the patent holder must file a request to participate in the Neutral Patent Evaluation Process. As part of the request, they must submit a statement identifying the product or products that infringe upon their patent. The patent holder is limited to 20 products for each request, and each product must be identified by its Amazon Standard Identification Number (ASIN).

Once Amazon has received the request, it will notify the accused seller of the infringement claim and invite them to participate in the process. The accused seller has three weeks to make a decision. If they agree to participate, their listings will remain active pending the conclusion of the process. If you have received an infringement notice, an Amazon patent attorney can help you understand your options. We offer a free 30-minute consultation to learn about your specific situation so you can feel confident understanding your legal options. 

The Amazon Neutral Evaluation Timeline

If both parties agree to participate in the process, Amazon will select a neutral third-party patent lawyer to evaluate the claim. Each party must pay a $4,000 deposit to the patent lawyer. Once the deposit is paid, the process then proceeds according to the following timeline: 

  1. The patent holder has 21 days to submit its argument as to why the seller is infringing on its patent. 
  2. The seller must respond to the patent holder’s argument within 14 days. 
  3. The patent holder may submit an additional response in reply to the seller within 7 days. 
  4. The evaluator will announce their decision within 14 days of the patent holder’s final response. 

As you can see, the process moves fairly quickly and can be difficult for both patent holders and sellers to manage while trying to run their business. An Amazon patent lawyer acting as your advocate can handle the process for you and ensure you meet the necessary deadlines. 

Our Amazon Patent Lawyer Outlines the Possible Outcomes

The evaluator will only provide a reason for their decision if they determine that the seller does not infringe on the patent. If they find in favor of the patent holder, the listings for the product will be removed from the seller’s storefront. The evaluator will refund the $4,000 deposit to the prevailing party and keep the deposit paid by the other party. 

Unfortunately, the unsuccessful party cannot appeal the decision or request reconsideration with Amazon. However, they can pursue litigation if they did not prevail on their claim, which is why we strongly recommend that you work with an experienced Amazon patent attorney – the consequences of an adverse outcome in the neutral evaluation process can be significant and costly. 

An Amazon patent infringement lawyer can report patent infringement to Amazon on your behalf to properly document everything for potential litigation. We hope it won’t come to that, but creating a paper trail is a best practice. In addition to a cease and desist letter asking the violating sellers to stop, we will submit notice to Amazon including your patent number, ASIN number, product URL, as well as supporting evidence demonstrating the infringement claim. 

Advantages of the Neutral Evaluation Procedure

The process is attractive for several reasons. It is much less expensive than litigation, arbitration or an Inter Partes Review at the United States Patent and Trademark Office.. The Amazon Neutral Evaluation Process is confidential so the parties do not need to worry about harm to their reputations. The process is also voluntary, so you are not obligated to participate. Perhaps most importantly, sellers who are accused of infringement may continue to sell the item in question until the process is concluded. In other words, sellers are not forced to halt sales until they prove that they have done nothing wrong. In short, your business depends on the outcome of the process – an Amazon patent infringement lawyer can help you reach a successful outcome. 

It’s important to note that the process is available only in cases involving utility patents. If you hold a design patent or are accused of infringing upon someone’s design patent, you cannot utilize the Neutral Evaluation Process. Whether defending against a claim or wondering whether you have a claim, an Amazon patent infringement lawyer can evaluate your case and explain your options. 

Patent Infringement Questions Answered by Our Amazon Patent Lawyers

Who can use the Neutral Evaluation Procedure?

Those who hold a valid utility patent.

When does a utility patent expire?

As long as all periodic payments are made to maintain the patent, it is good for 20 years.

What types of evidence will the evaluator consider?

The evaluator will not consider any oral testimony or arguments from either party. They will, however, consider photographs and charts in addition to the written argument and response. Discovery, depositions and physical evidence are not allowed to be submitted for consideration. 

What happens if the seller fails to respond to the claim of infringement?

Should the seller fail to respond to the patent infringement claim within the three week timeframe they are allowed, then the patent owner is deemed to be correct in their allegations and the item in question is removed from the seller’s site. 

Is a seller limited in what they can claim in defense?

Yes, the seller is limited in their defense claims. They may use only the following as defenses: non-infringement, a previous ruling by a court deeming the patent invalid, or the goods in question were on sale for more than a year prior to the patent effective date.

Talk to an Amazon Patent Attorney Today

At ESQgo®, PC, we have deep experience in resolving patent infringement claims. We work with both patent holders and sellers facing infringement claims. To schedule a free 1-hour consultation, contact us today to discuss your case with someone who knows how to get results.