Amazon has been trying out a new program that lets patent owners take action against alleged infringers using the retail giant. The program seeks to provide a quick, low cost, and confidential approach to address patent infringement allegations.
Amazon refers to the program as a “Utility Patent Neutral Evaluation.” Participation requires a $4,000 deposit from the patent owner and if the seller wishes to respond, they also have to put down a $4,000 deposit. The winner gets their money back and the loser gets stuck footing the bill.
The deposits don’t go into Amazon’s coffer but are given to a third-party attorney who is supposed to conduct a neutral review of the allegations. The neutral attorney reviews written remarks from both sides, which cannot exceed 15 pages. Once the seller has submitted its response to the allegations, the accuser has the opportunity to respond one last time. The remarks don’t require the same level of legalese as you would expect in a typical lawsuit.
In a normal patent lawsuit, the accused will argue that the patent is invalid and therefore unenforceable. Sellers cannot make invalidity arguments under the program unless the USPTO or a court has already spoken on the matter.
Decisions are typically received within a few months instead of the time expended during a lengthy court process, which is subject to appeal to a higher court. If the patent owner wins, the listing is removed and they get their money back. If the seller wins, the listing stays and the accuser is out their deposit. The listing is also removed if the seller decides not to take part in the program.
The program has a host of benefits. It can often be difficult to find the identity of a seller because they are simply using an account name, which does not provide their actual address or even their actual name in many instances. On the other side, it reduces the number of false accusations because of the cost to initiate a claim. However, the process is an all-around cheaper approach to addressing patent infringement taking place on Amazon. Participation does not prevent either party from filing a claim with the courts.
There is one interesting caveat. The program cannot be used for products made and offered by Amazon. Instead, the program is limited to allegations against third-party sellers who sell goods through Amazon.
The program is still in its trial phase, but Amazon has been taking aggressive steps to address intellectual property infringement. Once it is live, it will hopefully be emulated by other retailers where infringement runs rampant.
If you find yourself looking at participating in Amazon’s program, it is still advisable to work with an attorney. A licensed patent attorney will be better suited to present the basis for removal of a listing or the defense against removal.