Court Order for Amazon Products Accused of Patent Infringement
Amazon sellers facing a patent violation will often receive a boilerplate email stating that one option to get their listing reinstated is to present a court order regarding noninfringement. What most folks do not realize is that a court order is the result of a long and expensive litigation.
Need to resolve an Amazon patent violation and get your product listing back online? Contact US patent attorney Vic Lin at vlin@icaplaw.com to explore how we can help.
What is a Court Order?
Recognize that a court order is not some document that you simply request. It is a final decision resulting from a patent lawsuit between a patent owner and accused infringers. For most Amazon sellers, the option of a court order may not be cost-effective due to the high costs and demands of litigating a patent lawsuit to a final decision.
How to Start the Process for a Patent Court Order
In a conventional patent lawsuit, the patent owner would sue businesses for allegedly infringing one or more patents. However, accused infringers can take the initiative by suing the patent owner for declaratory judgment (DJ).
In particular, Amazon sellers accused of patent infringement can initiate a patent lawsuit for declaratory judgment of noninfringement. Do not rush this decision. Patent litigation in federal court is a complicated and expensive process. The more the other side fights back, the longer and more expensive the lawsuit becomes.
How Long Would a DJ Patent Lawsuit Take?
The length of a DJ patent lawsuit depends upon the other side, the patent owner. The patent owner can choose to fight back. If so, expect not only an answer to your DJ complaint but also counterclaims for patent infringement. Congratulations as you have just entered a full-fledged patent litigation case that could take years and hundreds of thousands of dollars.
But, you never know. Perhaps the patent owner will fail to answer. In that case, you might end up with a quick victory in the form of a default judgment. That would be the shortest and least expensive path to a court order that you can then present to Amazon to get your product listing reinstated.
Best Case Scenario: Court Order or Early Settlement
In a DJ lawsuit for patent noninfringement, the best case scenario entails the patent owner failing to answer. As the DJ plaintiff, the accused infringer would get a court order in the form of a declaratory judgment that the accused products do not infringe the pertinent patent.
Another great scenario would involve an early settlement with the patent owner. Suppose, for example, the patent owner files an answer and counterclaims for infringement. Shortly thereafter, both sides may reach an early settlement that reinstates the ASIN’s of the accused infringer.
More Challenging Scenarios
Do not expect all patent owners to ignore DJ lawsuits. Those with sufficient financial resources may choose to fight, and fight hard. Before you know it, you could be facing a patent lawsuit where legal fees could hit seven figures.
According to the AIPLA Economic Survey, patent lawsuits involving even less than $1 million at stake can easily cost over hundreds of thousands in legal fees.
Game of Chicken: How Far Will Each Side Go in Patent Litigation?
The high cost of taking a federal court patent litigation to the end will not make financial sense to most Amazon sellers. My guess is that this would be true of both patent owners and accused infringers selling on the platform.
LItigating a patent lawsuit then becomes a game of chicken. Which side will surrender first? Will both parties want to stop the bleeding and come to an early business resolution that involves a retraction of the Amazon patent complaint?
More Likely Scenario: No Court Order but an Amazon Patent Settlement
Most DJ patent lawsuits will not go all the way to trial. Since less than 2% of patent lawsuits reach a final decision, the more likely outcome is settlement or possibly an early decision by summary judgment.
Filing a DJ lawsuit, therefore, moves the patent dispute away from Amazon’s IP enforcement systems, such as APEX. which are typically cheaper. The cost savings for patent owners disappear as they are forced to litigate in federal court. As a result, all parties may have an economic incentive to reach a resolution that will prevent legal costs from ballooning.
Need to File a DJ Lawsuit for Patent Noninfringement?
Contact US patent attorney Vic Lin at vlin@icaplaw.com to explore how we can help you protect your Amazon sales.
