When a client comes to us with a patent infringement complaint, it is important for us to explain that there are two types of patents that are usually an issue on the Amazon platform.
These are:
utilities patents
design patents
It is very important for our clients to be aware of the differences between design and utility patents.
For example, the utility patent applies to the function of a product. Basically, this means what the product does. So even if your product does not look the same as patented invention, if it performs the same function, or does the same thing, then it’s considered to be infringing on that patent. Utility patent analysis can be complicated and sometimes we may wish to consult with an outside patent firm to make sure that infringement does or does not exist.
On the other hand, design patents are much harder to prove infringement. Design patents are only considered to be infringed upon if our clients’ design is so similar to that design of the patent that a consumer who’s familiar with what is called the “prior art” is unable to distinguish between products and choose which product they’re familiar with. Usually for our clients, we are able to identify the differences between the design patent and our clients’ design, such that we can overcome any claim of design patent infringement.
Usually we do this by reaching out the rights owners and explaining the difference. If that doesn’t work, we also have the option of appealing to Amazon and explain to Amazon’s legal teams why this patent doesn’t apply to our seller’s product.
The same goes for utility patents. Although the analysis can be more complicated, we approach it the same way. First, we conduct an analysis of the patent at issue. We compare it to our client’s product and then we reach out to the complainant or Amazon and explain why infringement in this case doesn’t exist.
If that doesn’t work, there are always other areas for sellers to adhere to including arbitration or litigation.
Patent Infringement Complaints – Helping Online Sellers Worldwide
ROSENBAUM FAMULARO, PC: law firm geared towards intellectual property law and brand protection in the global ecommerce marketplace.
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