Patent-infringement disputes are very expensive. Most patent litigants will not even consider going to court to resolve a dispute unless the potential damages are over $1 million. However, there are a few alternative forums in which litigants can resolve disputes involving a significantly lower amount at stake.
One such forum is the Amazon Utility Neutral Evaluation program, which is offered by Amazon.com. The program covers products that are sold on the Amazon.com website. The program does not result in an award of damages, but provides a utility patent owner with the ability to have infringing products removed from the website.
The procedure costs $4,000.00, which goes to the evaluator. The party that is assessed the $4,000.00 depends upon the outcome of the proceeding. If the patent owner does not prevail, the patent owner loses $4,000.00. If the patent owner wins, the losing parties must pay a proportional amount of the $4,000.00.
The proceeding is limited to a single claim in an unexpired U.S. utility patent. The procedure can be resolved in about two months through briefing schedule without any discovery.
The patent owner can seek to remove items that are sold by multiple sellers. A single proceeding can be limited to 20 products, but the rules suggest that, in some cases, the evaluator might be able to analyze more.
The evaluator will render a decision as to whether the patent covers the accused product listings. The evaluator can also determine that the listing should remain on the website because a court has determined the claim to be invalid or that the product-in-question (or a physically identical product) has been on sale more than one year before the earliest effective filing date of the patent. The term “court” refers to a federal court, the United States Patent and Trademark Office, or the International Trade Commission.
The decision of evaluator is “final” in the sense that it cannot be subject to any procedure for reconsideration. However, any party is free to litigate this matter in court and, if the party receives a favorable judgment, the party can submit the judgment to Amazon.
If patent owner loses the initial decision, but obtains a favorable court judgment, the patent owner can submit that order to Amazon, so that Amazon can remove listings for the infringement product.
Similarly, if an accused infringer receives an unfavorable decision from the evaluator and, subsequently, obtains a favorable court order, the accused infringer can submit that order to Amazon to have the accused infringer’s listing restored.