Amazon launches ‘Utility Patent Neutral Evaluation’ process to stop bogus IP claims
Thompson and Holt has welcomed the news that Amazon has devised a ‘Utility Patent Neutral Evaluation’ process to end the process of bogus IP claims which can lead to an Amazon Seller IP Suspension.
We have seem first hand how the underhand tactic used by some Amazon Sellers can impact on businesses. It sees them file bogus infringement claims against another Seller, which can take them offline for several weeks or even months in the worst cases.
Thompson and Holt managing partner Craig Gedey said: “Amazon’s old system has allowed that to flourish. It required the affected Seller to contact the patent owner directly and work through the issues between themselves.
“In the meantime, the product in question has been removed from Amazon’s site, preventing sales. It’s a system that has been abused, taking competitors off the site without good reason. We have seen companies suffer significantly from this, before helping them get back online as quickly as possible once they contacted Thompson and Holt.”
Now the new Utility Patent Neutral Evaluation program - which is currently invitation-only and limited to utility patents - aims to facilitate resolutions through a neutral evaluator selected by Amazon.
Amazon has issued a statement on the program which reads: “We continue to experiment and develop tools that will help us better protect rights owners and our customers, including this process for utility patent owners. The Amazon Utility Patent Neutral Evaluation process allows utility patent owners to more efficiently and effectively address suspected infringers, gives sellers a forum to contest accusations, and significantly reduces the time and cost burden on both parties.”
It is important to note at this point that the new system deals only with utility patents and not design ones, which have also caused issues to companies in recent years. Amazon has refused to become involved in disputes over design patents until legal judgements are received, which can cost companies thousands of pounds. And because the new program is invitation only at present, it does not cover everybody.
But Thompson and Holt’s Gedey still believes it is a step in the right direction. He said: “Anything that is moving towards stopping shady Amazon practises that damage genuine Sellers has our support. Hopefully the program can be expanded moving forward to protect more online businesses.”
So how does the new ‘Utility Patent Neutral Evaluation’ work? An article published by Forbes explains the process.
It reads as follows: “The patent owner submits an Amazon Utility Patent Neutral Evaluation Agreement for the ASIN (Amazon Standard Identification Number) in question.
Amazon sends the Neutral Evaluation Agreement to each seller offering the ASIN. Each seller can either agree to continue with the Evaluation or have their listings removed from Amazon.
All parties pay the evaluator (a neutral third party lawyer selected by Amazon) a $4,000 deposit if all parties agree to participate.
If the parties proceed and submit their fees (fees are deposited with the evaluator, not Amazon), the evaluator sets a briefing schedule. The patent owner has 21 days to submit their initial arguments; the seller has 14 days to respond; and the patent owner has seven days to submit an optional reply. The evaluator has 14 days to announce their decision. The evaluator can either find that the patent owner is likely to prove that the accused product infringes the asserted patent claim or that the patent owner is not likely to prove that the accused product infringes the asserted claim. Under the Neutral Evaluation rules, the evaluator provides the basis for his or her finding only if the evaluator finds in favour of the seller.
If the evaluator finds in favour of the patent owner, Amazon will take down the accused product. If the evaluator finds in favour of the seller, its product will remain listed on Amazon. The prevailing party gets their $4,000 fee refunded, and the fees from the losing party(ies) are paid out to the evaluator.
The program’s rules do not allow for an appeal or reconsideration which is different to the Seller Performance Amazon appeal process, but either party can still commence a federal court action for patent infringement or a declaratory judgement at a later time.
Amazon’s process was developed specifically with small and medium-sized rights owners in mind. These smaller companies would otherwise be greatly affected by an average patent lawsuit, which can take years and cost hundreds of thousands or even millions of dollars to resolve. Instead, this process requires just $4,000 (which is fully refundable to the winner) and takes less than four months from beginning to end.”
If you have found yourself suspended over an alleged patent infringement, contact Thompson and Holt for a free LiveChat to get your Amazon Seller business back online as quickly as possible.