How do you defend an Amazon Neutral Patent Evaluation?

What is Amazon’s Patent Infringement Program and how does it work?

Amazon’s Neutral Patent Infringement Program (NPE) is Amazon’s version of a quasi-judicial court to resolve patent infringement disputes between sellers. It is akin to an arbitration or mediation overseen by an experienced and vetted patent practitioner. NPE is not a court of law, so any of the rulings are not prejudicial on any platform or marketplace other than However, it aims to provide a more cost-effective method to resolve patent disputes between sellers.

The program is initiated once a patent holder submits a complaint to Amazon through Amazon’s seller portal. The accused product is immediately removed from its Amazon listing and the accused infringer is notified. The accused infringer then may negotiate a settlement directly with the rights holder or agree to participate in the NPE program.

A neutral evaluator is assigned to each case to determine whether a particular vendor’s goods violates the patent or patents asserted by the rights holder. Both the rights holder and the accused infringer have the opportunity to argue their cases. Each party may file a brief up to 15 pages along with a $4,000 deposit each. The winner of the process gets their $4,000 deposit refunded.

How to defend against an Amazon Patent Infringement Program claim.

A seller who choses to participate in the NPE program may defend against a claim of patent infringement by:

    • arguing noninfringement;
    • providing evidence that the patent was previously declared invalid or unenforceable by a court, USPTO or ITC; or
    • proving the products were on sale one year or more before patent’s effective filing date.

Importantly, patent invalidity is not an available defense for the accused infringer. This is one of the main differences between the federal court system and the NPE program because arguing invalidity is often a large part of a defensive strategy. Interestingly, Amazon will still consider whether the accused products were on sale one year or more before the patent’s effective filing date, which would be grounds for invalidity in the federal courts.

Most likely, an accused infringer will need to argue non-infringement. Patent infringement is a complex concept, therefore before a decision is made whether to participate in the NPE process, a non-infringement analysis should be conducted by a Registered Patent Attorney to determine the likelihood of a successful defense.

Part of a non-infringement strategy will be to argue the most narrow interpretation of the subject patent’s claims. The claims are the only part of a patent that defines the rights granted by the patent. Therefore, arguing for the most limited interpretation of the claims will yield the most limited scope of patent rights.

A patent must be construed in view of the prior art.  The claims cannot be read to cover prior art, nor can they be construed to be broader than what was considered during prosecution. While Amazon’s NPE process does not consider invalidity arguments, you can submit prior art to support arguments limiting the scope of the claims. This is a complex and technical argument that should be drafted by a Registered Patent Attorney familiar with claim construction and patent litigation. If you need assistance or have any questions, please contact Andrew G. Martin or your Fraser Trebilcock attorney.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at