Amazon APEX: How to Enforce Utility Patents Against Amazon Sellers

What is Amazon APEX?

Amazon sellers now have another avenue for enforcing utility patents. APEX stands for Amazon Patent Evaluation eXpress. As implied in its name, APEX aims to be a quicker option for enforcing utility patent rights against infringing product listings.

Need to enforce or defend a utility patent on Amazon? Call US patent and trademark attorney Vic Lin at (949) 223-9623 or email to explore how we can protect your sales by enforcing your patent rights.

How to Start Protecting IP Rights on Amazon

At the outset, sellers need to register on Amazon Brand Registry. Nowadays, you do not necessarily need to have a trademark registered in order to apply for the Brand Registry. A pending trademark application filed with the USPTO may suffice.

By getting into the Brand Registry, you are now in Amazon’s system which provides you with various options for enforcing your IP rights against competing sellers.

What types of patents are eligible for Amazon APEX?

The APEX program works for utility patents only. Moreover, simpler technologies are more likely to be accepted. Utility patents with complex claims might not be appropriate for APEX.

APEX does not cover design patent infringement. Consider working with an experienced patent attorney on requesting a design patent neutral evaluation if you need to enforce a design patent.

How does Amazon APEX work?

Similar to the neutral patent evaluation program, APEX will involve a neutral patent evaluator (e.g., experienced patent attorney) who will render a decision on whether the accused listings infringe the asserted utility patent. Each side must be willing to pay a $4,000 deposit. The winning party gets the deposit refunded.

Patent owners registered in the Brand Registry can start by submitting a request for APEX that should include their utility patent number and the ASIN of allegedly infringing listings. After the request is submitted, Amazon will make a decision within a few business days on whether to grant the request. If so, the patent-owner-seller will receive an APEX agreement which must be completed and signed, and returned with the required materials.

Sellers accused of infringement will then receive a notice and the option to participate in the APEX program. Three weeks will be given to accused sellers to make a decision. Amazon sellers who do not participate will have their accused ASIN listings removed. So accused Amazon sellers must make a decision. Either pay the $4,000 deposit and hire a patent attorney to make noninfringement arguments, or forfeit the accused product listings.

What are the deadlines for legal arguments?

Before the evaluation briefing schedule is set, at least one accused seller must send in their signed evaluation agreement. Then both sides must submit their respective deposits for the neutral evaluator. Once APEX has been initiated, the patent owner has 21 days to submit their infringement arguments.

Accused sellers then have 14 days to submit their opposing arguments (i.e., noninfringement arguments).

The patent owner gets the last say and has 7 days to submit an optional reply.

How long does it take to receive an APEX decision?

If both parties move forward with APEX, the neutral patent evaluator will issue a written decision within two weeks of the final reply brief deadline. The winning party gets their $4,000 evaluator deposit back.

One way Amazon makes this program “express” is by streamlining the cases to consider only infringement arguments. Defenses other than noninfringement – such as invalidity of the claim or the bad faith of the patent owner – will not be considered by the evaluator.

In limited circumstances, an accused seller can present evidence of a prior ruling of invalidity. However, this is highly unlikely. Most patent owners would not proceed with enforcing a patent that has already been ruled invalid.

Does Amazon track records of wins and losses by IP rights owners?

Do you think a data-driven e-commerce giant would ignore the results of their own patent cases? As you might expect, case results are tracked by Amazon. Furthermore, victorious patent owners may be able to piggyback off a prior successful APEX case by using an assigned APEX ID against similar listings in the future without going through another evaluation.

What strategies cannot be ignored by Amazon sellers?

Innovative Amazon sellers must plan ahead and timely file a broad range of IP rights to enforce against copycats. For example, certain products may be eligible for both design patent and utility patent protection.

Utility patent applications for simpler products should be written with at least one independent claim that would be more appropriate for APEX. At least a couple of independent claims to give you more options for enforcement.

Amazon sellers who simply wish to sell products without getting into trouble might consider having a Freedom-To-Operate analysis done before selling and preferably before investing substantial capital in purchasing inventory.

What kind of attorney should you hire for Amazon APEX cases?

Many lawyers who handle only trademarks or copyrights may call themselves IP attorneys. Few IP attorneys have actual experience filing and litigating patents. While there is no requirement that a lawyer working on an APEX case must be a patent attorney, you would be best served working with an attorney experienced in patent infringement.

In particular, attorneys with patent infringement experience understand how to make technical arguments regarding infringement that relate to the patent claims and the accused products. Experienced patent infringement attorneys also understand how to make invalidity contentions based on past sales of products covered by an independent claim.

Need an experienced patent attorney to fight an Amazon APEX case?

Call US patent attorney Vic Lin at (949) 223-9623 or email to explore options and strategies for protecting your sales on Amazon.

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