Patent Issues on Amazon

Even in a world where technology has currently carved out a more prominent role in the business sphere than anybody could have ever imagined, certain computerized automation systems are still significantly less consistent than that of what an actual human can provide.

There’s no greater example of this construct in action than the implementation of Amazon’s new Design Patent Evaluation Program, which is a new & efficient process for Amazon sellers submitting design patent complaints.

TWO TYPES OF PATENTS

There are two types of patents; utility patents and design patents.

Utility patents exist in order to protect the way in which a product is used, how it works, and the unique functional value that it provides to the consumer. These patents generally take longer to be issued than do design patents, and as a result, the term of a utility patent usually lasts longer than the term of a design patent. In contrast, a design patent exists to protect the appearance of a product, and covers nothing relevant to the functionality of the product, outside of the way that it looks.

Generally speaking, applying for a design patent tends to cost a lot less than applying for the more involved utility patent, and consists of a lot less specification. It is perhaps for this reason that ecommerce platforms, such as Amazon, have first addressed the concerns of evaluating utility patent complaints, and have since failed to address the submission of design patent complaints.

Until recently, Amazon’s web services have inconsistently and inaccurately processed complaints dealing with design patent infringement. Amazon’s algorithmic computer programs used for the review of design patent infringement have left much to be desired when it comes to the evaluation process. Taking the automated route is very limiting, as certain times, computer software is incapable of serving as a viable substitute for an actual, attentive human being. This is certainly the issue when it comes to Amazon’s computerized format.

The main problem rests on the fact that a predetermined algorithm cannot properly examine the design of a product and circumstantially determine whether or not a specific design is different enough from an already protected design in order to avoid patent issues. As a result, the fair and equitable decision is not always being made by the automated screening process, which is disadvantageous to the party who did their proper due diligence, but who is still not being granted proper justice.

HOW IS AMAZON ADDRESSING THIS PROBLEM?

While this lack of clarity and consistency has been frustrating, we have recently been invited to participate in Amazon’s Design Patent Evaluation Program on behalf of our clients.

Essentially, this process seeks to mirror Amazon’s Utility Patent Neutral Evaluation Program, which our firm has had great and reliable experience with. This new evaluation process is not only easy to grasp, but it is much more hands on than the current system, which should ultimately help to ease the minds of those who fear leaving their design patent issues to a machine.

HOW THE PROGRAM WORKS:

1. The patent owner will submit an “agreement” to initiate the evaluation.
2. Amazon will confirm the receipt and begin notifying the requisite sellers.
3. The sellers will then have 3 weeks from the time the notice is received to decide whether or not they’d like to participate in the evaluation.
4. If a seller chooses not to participate in the evaluation, that seller’s listing will be automatically removed.
5. If one or more sellers do choose to participate, Amazon will appoint a neutral evaluator.
6. Both sides will then be permitted to submit their arguments. First, the patent owner, then the accused seller(s). The patent owner will then have the final word (“last licks”) and can submit their final arguments.
7. The neutral evaluator will then determine and decide whether the listings infringe upon the design patent or not. Amazon will either take down the listing if they decide that an infringement has taken place, or Amazon will keep the listing posted if they decide that no infringement has taken place.
8. Each participant will make a $4,000 deposit before the evaluation process begins. The loser of the evaluation process will have to pay that $4,000, but the winner of the evaluation process will get their deposit back.

BENEFITS OF AMAZON’S DESIGN PATENT EVALUATION PROGRAM

As is the case with the already existing Utility Patent Evaluation Program, which has seen a much more accurate and equitable level of success in comparison to its predeceasing automated and computerized process, this new Design Patent Evaluation Program will be of immense benefit to whichever party is worthy of judgment in their favor.

For starters, this actual human interaction between both of the adverse parties, as well as a neutral attorney hired from one of several third party law firms with no affiliation to Amazon otherwise, will not only lead to a more efficient system of dealing with complaints, but will also serve as a more effective and impartial measure to properly address the consistent concern of patent infringement. With an actual, human representative present, a more detailed and extensive case-by-case analysis can be applied in order to either assure that Amazon listings are not being needlessly removed when they should be allowed to continue operating, or to assure that an actual patent infringement will be addressed and removed from the platform each and every time. This new and improved approach is likely to benefit patent owners who will continue to see infringement listings removed from Amazon’s platform promptly.

Additionally, if this Design Patent Evaluation Program is in fact treated similarly to the Utility Patent Evaluation Program, sellers who have achieved two victories by default or one victory by decision will be provided with a special case ID to be associated with their account for Amazon to treat as the equivalent of a court order.

When a patent owner then submits their next complaint alongside this special case ID, Amazon will remove the accused listing without any need for a new evaluation. This feature, which has consistently worked quite well with respect to the utility patent process, seeks to reward abiding sellers who are going about conducting their business in and enforcing their IP the proper manner.

The Amazon Design Patent Evaluation Program serves as an uplifting step in the right direction, particularly for patent owners who have not been given a fair shot by the computer automated system that has previously controlled this process of infringement complaints. If the Utility Patent Evaluation Program is anything to go by, we believe that this new design patent initiative will do wonders for those who seek to protect their intellectual property rights.

IF YOU’D LIKE US TO LEARN MORE ABOUT YOUR PATENT ISSUES, PLEASE CONTACT US – we will be in touch immediately.

Submitting design patent complaints written by: Christopher Giovinco, Legal Intern at Amazon Sellers Lawyer.