Amazon’s Neutral Patent Evaluation Program

We have experience with Amazon. We understand Amazon Seller Central, the Brand Registry, A+ content, and Amazon’s Neutral Patent Evaluation Program (now called “APEX”). For many of our clients, Amazon sales constitute a business and livelihood. It is easy for any utility patent holder to remove a competitor’s product from Amazon simply by falsely reporting the products infringe one or more patents. As patent bullying on Amazon becomes more commonplace, so does the need for counsel experienced in stopping this bullying. There are several approaches which companies being bullied on Amazon may employ to deal with it, including: (1) making use of Amazon’s APEX Program to have a patent and accused products neutrally evaluated; (2) seeking declaratory judgment of noninfringement in a U.S. district court; and (3) petitioning the PTAB (Patent Trial and Appeal Board) for Inter Party Review (IPR) of an U.S. patent. We have experience in each.

Amazon has become the premier marketplace for the sale of almost all consumer goods. As legal and regulatory issues with patents and trademarks, in connection with selling on Amazon, have grown, Amazon has attempted to implement tools, protocols and program to help patent rights holders enforce their patents against infringers on its platform.

Amazon provides two different protocols for reporting patent infringement. The first is a an online form which can be completed and submitted online if you are in Amazon’s Brand Registry. In response to receipt of this form, Amazon will typically remove an accused product without further inquiry based simply on the unsupported allegation there is patent infringement, often suddenly leaving an amazon seller destitute and unable to generate review. It is common to do this to Chinese importers. Amazon then leaves the dispute to patent holder and accused infringer to resolve, either in court, before the PTAB, or through Amazon’s APEX program —the Amazon Patent Evaluation Express (“APEX”) Program.

The APEX Program invovles both the patent owner and accused seller, and uses a neutral patent attorney hired by Amazon as a judge. The neutral patent attorney (or “evaluator”) is an IP attorney trained by Amazon to resolve these disputes. An accused infringer losing under the APEX program will have their products removed from Amazon unless Amazon is otherwise directed by a U.S. district court judge.

The APEX Program was formerly called the Amazon Patent Neutral Evaluation Program, or UPNE Program, and changed to the APEX Program in 2022.

To become a member of the Amazon Brand Registry, one must have a registered U.S. trademark covering the goods at issue. All Amazon sellers should be members of Amazon’s Brand Registry, and we can help Amazon sellers quickly get listed in the Brand Registry if you are not.

If both a patent holder and an infringer agree to participate in the APEX Program, each party must pay $4,000, with the winning party receiving a refund upon completion. Failure by an accused infringer to participate in the program, however, results in the immediate removal of an accused infringer’s products from Amazon. If the proceeding is instituted, the patent holder is permitted 20 total pages of briefing, divided between an initial brief and reply brief, while each accused infringer is allotted 15 total pages for a single responsive brief. Adjudication of the briefs typically take three months.

It is important to note that while invalidity of a patent is an important issue in patent litigation before U.S. district courts, Amazon’s APEX Program will not consider invalidity defenses unless a U.S. court has previously found the patent at issue to be invalid.

Amazon’s APEX program is fast and inexpensive relative to patent litigation before a U.S. district court, but there is not opportunity to subpoena documents or deal with complicated technologies. Additionally, Amazon sellers wrongfully accused of patent infringment was wish to recover monies in court which are not available in the APEX program, including monies for unfair competition and intentional interference with economic relations.

We can help Amazon sellers and patent holders with navigating the APEX program.