How can a patent boost Amazon sales?
Amazon Sellers cannot ignore patent protection. Unless you’re selling only me-too goods, consider how the right patent can boost Amazon sales of your innovative product. Going naked without patent protection will simply invite competitors to steal your market share.
Design Patent vs. Utility Patent: Which IP makes sense for Amazon sales?
At the outset, a fundamental understanding of the difference between design and utility patents will help you decide which one to file. Design patents protect the ornamental appearance of a product while utility patents protect functionality. In other words, a design patent protects how a product looks whereas a utility patent protects how it works.
Accordingly, design patents are cheaper, quicker and easier to obtain. Utility patents, however, generally provide broader protection. For example, a copycat selling similar looking products might infringe your design patent. However, if a competitor were to modify the appearance and then sell a competing product that does the same thing as your product, you may need a utility patent to block them from selling that different-looking product.
While several factors can influence a decision on whether to apply for a utility or design patent, let’s focus on the primary factors that matter most to you as an Amazon Seller. These patent factors boil down to:
- Speed (how long does it take to get a patent?)
- Scope of coverage (what does your patent protect?)
Cost Factor: Which patent do you file on a limited budget?
Let’s start with patent costs because this is likely the largest and only factor for many Amazon Sellers. If you cannot afford a utility patent, then focus on what you can do with a design patent.
For roughly $1,500, you can file a US design patent application as a small entity (e.g., company with less than 500 employees). This covers the initial filing cost including our flat rate attorney fee, USPTO fees and illustrator fees. Additional costs will apply after initial filing, such as paying the issue fee if and when your design patent application is allowed.
To speed up your design patent application, an additional cost of approximately $1,640 will cover a Rocket Docket request which can speed up the USPTO examination by one to two years. Instead of waiting two years or more to get your design patent, you might be able to get your design patent granted in less than one year with Rocket Docket.
If you have at least $4,000 now with the possibility of raising or obtaining more money later, then you might consider utility patent protection. Our firm can draft a provisional patent application (PPA) for approximately 50% of the cost of drafting a nonprovisional application. You would then need to come up with the remaining 50% of the cost in order to convert and file a nonprovisional application within the 1-year deadline.
A regular utility patent application, known as a utility nonprovisional patent application, will cost roughly $7,500 to over $10,000 for the initial filing.
Speed Factor: How long does it take to get a design patent versus a utility patent?
If getting a patent as soon as possible is your primary concern, you must consider design patents. By filing a design patent application with a Rocket Docket request, you have a high chance of obtaining a granted design patent in less than one year. On average, design patent applications have a high probability of success with an allowance rate of over 80%.
This does not mean that you must forget about utility patents since you might be able to file both.
Scope of Coverage Factor: Which patent type will give Amazon Sellers broader protection?
Generally, utility patents provide broader protection because a competitor’s product can still infringe even if it looks different than your patented product. For Amazon Sellers enrolled in Brand Registry, utility patents can be enforced through APEX. Also known as Amazon Patent Evaluation Express, this evaluation procedure makes sense for simpler utility patents. More complicated utility patents might not be appropriate for APEX.
While utility patents are generally broader in scope, a strategically prepared design patent application can provide the owner with significant protection. We have experience in obtaining meaningful design patents using certain strategies to broaden the scope of protection.
Design patents cover the ornamental appearance of your product. The focus is on how it looks. So accused products must look substantially similar to your patented appearance in order for you to enforce your design patent.
How do Amazon Sellers know if their utility patents are any good?
After slogging through a long journey, you obtained a utility patent. Are congratulations in order? Maybe. But, what if your claims are so narrow that others can easily design around your utility patent to avoid infringement? I encourage you to read this post on how utility patent claims work.
Here’s the dilemma. When your utility patent application was allowed, the claims may have looked good at the time. At that time, there might not have been many competitors so you were not able to compare your allowed claims to any competing products. With the passage of time, other Amazon Sellers have arrived with new competing products that appear to circumvent your utility patent.
What are your options now? For these reasons and more, we routinely recommend filing a child application before the parent patent is granted. This gives the patent owner a second bite at the apple. Instead of being stuck with fixed claims that are no longer infringed, the patent owner can pursue new claims in the child application that would cover the new competing products.
Can you delay filing patents until your Amazon sales improve?
Do not assume that you can fix this problem later with more money. The issue is timing, not money. When it is too late, you simply cannot travel back in time to file a patent.
Be proactive by thinking about patents now. Even if you are not yet ready to file patents, you will at least have a rough timeframe for seeking protection when the time is right, and not when it’s too late.
Need to stop Amazon Sellers from selling your patented products?
Creating a new product requires a huge investment of money and time. Copycat products bypass this investment and undercut the innovator’s price. If you are the product creator, why allow others to copy your product at a price lower than yours? Get the right patent as a tool to protect your Amazon sales.
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