patent infringement

Top Legal Strategies Against Patent Infringement & Unauthorized Sellers Online

Patent infringement involves using, making, selling, or importing a patented invention without permission. Infringers on Amazon and other online marketplaces will also copy patent descriptions to mislead customers into buying their products. 

What does patent infringement look like on online marketplaces like Amazon? The most common examples we see are:

  • Unauthorized Sales: Selling products that use patented technology without the patent owner’s permission.
  • Copycats and Counterfeits: Listing items that mimic the design or function of patented items, especially common in fashion and consumer electronics.
  • Misleading Descriptions: Using patent descriptions to inflate their product’s capabilities.
  • Importation Issues: Importing and selling products that infringe on a patent in the destination country. 

What if someone is selling your product online without permission? You can request the marketplace take down infringing listings. 

For instance, the Amazon APEX program protects utility patents by assigning licensed patent attorneys to investigate infringement claims. The evaluation can get expensive — between $4,000-$6,000. If your claim is valid, Amazon returns your money and removes the offending listing.

But marketplace legal resources are limited. The best course of action is to work with an IP attorney to protect your ownership rights and effectively remove unauthorized sellers.

How to Remove Unauthorized Sellers on Amazon

There are two types of patent infringement: utility and design. Utility patents protect the function and composition of a product while design patents protect the unique and ornamental appearance of it. 

Tatonetti IP can remove infringing goods on Amazon and protect both utility and design patents.

Take these steps to start the takedown process:

Report Infringement

Report the infringing seller to the marketplace directly. Amazon has a form IP owners can use. However, this doesn’t automatically result in the listing’s removal. Work with an attorney to plan the next best steps if the listing isn’t removed.

Request an Evaluation

An attorney can help you draft the request. If granted, Amazon will provide a third-party legal evaluation of the infringing listings (you can report up to 20 at a time). The accused seller has three weeks to sign and acknowledge the evaluation or the listing is automatically removed. 

Speak With an IP Attorney

Infringement evaluation requests aren’t a simple typeform. There is a strict timeline and page limits. Your attorney can present your arguments concisely in the opening brief and ensure you appropriately respond to sellers quickly.

What happens if your infringement report or evaluation request is rejected? You might receive a message from Amazon telling you that the listing isn’t similar enough to your patent. If you work with an attorney, we can contact Amazon on your behalf and possibly negotiate an evaluation.

Unfortunately, you can’t appeal an evaluation decision. We can challenge the sellers in court if Amazon or any online marketplace refuses to remove unauthorized listings.

How to Defend Patent Infringement Claims

We can help defend your product and write non-infringement opinions to get removed goods back on marketplaces. But the first and easiest step to avoiding patent infringement online is to complete a thorough patent search. Our skilled IP attorneys have access to databases and global dossiers to check existing patents and ensure you aren’t accused of unauthorized sales or production. 

When facing accusations of patent infringement, our top three defense strategies are:

Defense #1: Non-Infringement

Your team at Tatonetti IP will write effective non-infringement options that describe how your product is different and missing key components and features described in the patent. There can be multiple claims against your product, and your attorney will address each one.

Defense #2: Change Your Product

You can avoid expensive online evaluations by redesigning your product around any existing patents. Work with an IP attorney to decide which modifications are worth investing in. The lawyer will also do a prior art search to ensure you avoid any infringement claims in the future.

Defense #3: Invalid Patent

This is a more difficult defense but not impossible. It involves proving a patent should never have been granted in the first place. You must have prior art proving the patent does not create something new or unique. An attorney will request a re-examination from the USPTO to investigate your claims. 

U.S. Patent Infringement Cases

Patent infringement cases in the U.S. have taken years to settle, so the sooner you speak with an attorney, the better. 

COLUMBIA SPORTSWEAR NORTH AMERICA, INC. v. SEIRUS INNOVATIVE ACCESSORIES, INC.

Design Patent Infringement: It took over ten years, but the U.S. Court of Appeals granted a retrial for Columbia Sportswear in 2023. The patent protects the wavy-lined design of Columbia’s distinct heat-reflective sportswear material. Columbia argues that the Seirus product design looks too similar and demanded a retrial on the grounds that product comparisons for the jury did not include other heat-reflective products. 

This ruling reinforces the value of design patents and requires attorneys and inventors to use only relevant designs in product comparisons.

YYGM SA DBA BRANDY MELVILLE v. REDBUBBLE, INC.

Patent Infringement in Online Marketplaces: In this case, clothing brand Brandy Melville went after the Redbubble online marketplace and not just the individual infringer. The courts maintained the ruling that Redbubble did not know the specific examples of patent or trademark infringement on its website, and therefore could not be guilty of wilful blindness.

Future infringement claims against individuals and larger marketplace entities must have specific examples of products and infringement from both the infringer and the patent holder.

It is possible to infringe on multiple patents at once. In fact, you could infringe on a patent without knowing it. Work with an IP attorney to conduct a thorough patent search to avoid any infringement claims. 

Patent Infringement: Frequently Asked Questions

Can you infringe on a patent without knowing?

Direct infringement does not require any prior knowledge of a patent, but you face more severe consequences if you do have proof of a patent and decide to produce and sell your product anyway. 

Is patent infringement a crime?

There is no jail time or criminal record for patent infringement, but you do face civil penalties. Patent holders can sue for lost profits and request an injunction banning you from producing or selling your product. 

What happens if you infringe on a patent in an online marketplace?

The marketplace will likely remove your listing until the claims are resolved. You can modify your product, update your listing, and repost the item for sale, but it’s in your best interest to hire a skilled IP attorney to defend your product, especially if you believe the claims are false.

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