How can an Amazon seller benefit from design patents?
IP simply cannot be ignored when you’re selling on Amazon. A common misconception is that IP is not a factor when low-tech or no-tech products are involved. Don’t fall into that trap. Those who tend to ignore IP are the ones caught off guard when, for example, a patent owner blocks them from selling a competing product on Amazon. If you are an Amazon seller, design patents must be considered – either offensively or defensively.
Offensively, you can acquire design patents to protect the unique visual appearance of your product. Defensively, you’ll want to avoid selling products that look too similar to any designs patented by competitors. A freedom-to-operate (FTO) search can help provide guidance on what features to avoid in your product.
When should Amazon sellers consider filing design patents?
Ideally, you should consider filing a design patent application before launching your product. By launching, I’m referring to the earliest disclosure of your concept to the public. Filing before any public disclosure can help you win the race to the Patent Office and keep your foreign filing options open.
How to avoid infringing design patents
You can start by searching Google patents for design patents owned by key competitors. If you locate any, consider discussing your search results with a patent attorney to formulate a gameplan. Navigating around the competitor’s design patents may require looking into the prior art references reviewed by the patent examiner during the application examination process
How to enforce your design patent against Amazon sellers
Amazon provides IP owners with a few options for enforcing design patents against listings accused of infringement. One option is to report infringement.
Another option is known as Neutral Patent Evaluation or NPE. A design patent owner can request a proceeding where a neutral evaluator would assess an infringement claim made against particular listings. It’s basically Amazon’s version of a patent court.
Currently, the NPE program is available for design patent infringement on a case-by-case basis. A design patent owner may request that Amazon initiate the evaluation, but there is no guarantee that an NPE will be granted. If a request is granted, the fee for the neutral evaluator is $4,000 for each party, but the winner gets it back. So if you have a strong case, you might end up paying only your attorney’s fee.