Lessons Learned from Amazon APEX Proceedings: Key Takeaways for Patent Owners and Sellers

Amazon’s rapid expansion as a marketplace for third-party sellers has created both opportunities and challenges in the enforcement of intellectual property rights -,particularly patent rights. To address the growing number of utility patent disputes, Amazon developed the Amazon Patent Evaluation Express (APEX) program, which allows patent owners to pursue cost-effective enforcement of their patent rights without resorting to formal litigation. While the APEX program is a useful tool for patent enforcement, several practical lessons have emerged from recent proceedings that all stakeholders – patent holders and sellers alike – should understand.

The APEX Program: A Streamlined Enforcement Mechanism

At its core, APEX is designed to facilitate faster resolution of utility patent infringement claims only. Under this program, a patent owner may initiate an evaluation by submitting a request identifying up to twenty ASINs (Amazon Standard Identification Numbers) of allegedly infringing products. Once accepted, Amazon notifies the accused seller and invites them to participate in the process. If both parties agree, Amazon appoints a neutral third-party patent attorney to evaluate the claim. Each party pays a $4,000 deposit, which is refunded to the prevailing party. 

Lesson 1: Start with a Strong Foundation—Patent Claim Analysis Is Crucial

Before filing an APEX complaint, a patent owner should work with a registered patent attorney to conduct a claim chart analysis comparing the patent claims to the allegedly infringing product. The APEX process is designed to be expedited and does not include discovery, depositions, or expert testimony. As such, success often hinges on the strength and clarity of the initial submission. A weak or overreaching allegation can lead to a denial by the neutral evaluator and limit further recourse within Amazon.  Additionally, before submitting an APEX complaint, the patent owner should understand that more complex inventions, like electronics, may not be entitled to proceed with the APEX program. 

Lesson 2: Maintain Accurate Records and Monitor for Follow-Up

Once an APEX request is submitted, Amazon typically sends a confirmation email to the primary contact address provided. It is important to monitor this inbox closely, as Amazon’s follow-up messages – including the invitation to proceed with APEX – are time-sensitive. If a response or agreement is not received within the designated timeframe, the matter may stall.

If you are registered with Amazon Brand Registry, in the event you do not receive a timely update or cannot view your submission status, you may check your submission history through Amazon Seller Central’s “Report a Violation” tool or access support through Seller central. However, note that Amazon has emphasized that [email protected] is not the proper channel for updates on infringement complaints, and further emails to that address may go unanswered. 

Lesson 3: Don’t Rely Solely on APEX – Issue a Cease and Desist Letter

Another important lesson for patent owners is the value of traditional enforcement tactics alongside the APEX process. Once Amazon provides the contact information of the seller accused of infringement, patent owners should promptly send a cease-and-desist letter. This letter not only reiterates the infringement allegation but also signals the seriousness of the matter and preserves the record in the event of future litigation.

Issuing a cease and desist letter can also trigger informal resolution – some sellers may choose to voluntarily remove the listing rather than participate in a formal APEX proceeding. Even if the seller agrees to APEX participation, having a letter on record may be useful in demonstrating good-faith efforts to resolve the dispute prior to potential escalation.

Lesson 4: Understand the Limits and Benefits of APEX

The APEX process is advantageous in several respects. It is faster and less costly than federal court litigation or proceedings before the USPTO, such as inter partes review. The process is also confidential, which helps protect the reputations of both parties. Importantly, the accused seller’s listing remains active while the process is ongoing, ensuring fairness to both sides.

However, APEX has limitations. It is restricted to utility patents – design patents are excluded. Moreover, the decision of the neutral evaluator is final within Amazon’s process. If a party disagrees with the outcome, their only recourse is litigation in federal court. APEX also does not allow for discovery or damages, meaning the remedy is limited to removal of the infringing listing from Amazon’s marketplace.

Lesson 5: APEX is ONLY available to patent owners who are enrolled in Brand Registry. 

If the patent owner is not an amazon seller, APEX is not available. However, these patent owners may initiate an APEX proceeding using Amazon’s Report Infringement form, available at https://www.amazon.com/report/infringement.  In addition to submitting the Complaint, I also recommend sending a cease and desist letter to the infringing seller’s address provided by Amazon as well as explained above. 

Recommendations for Patent Owners

To make the most of Amazon’s APEX program, patent owners should take the following steps:

• Engage a qualified patent attorney to assess infringement and prepare a compelling claim submission.
• Submit the complaint via Amazon’s official Report Infringement page: https://www.amazon.com/report/infringement.
• Monitor communications from Amazon closely and be prepared to respond promptly.
• Send a cease and desist letter once seller contact details are provided.
• Document all correspondence and filings in case future enforcement actions become necessary.

For Sellers Accused of Infringement

If you are a seller who has received an APEX participation request, do not ignore it. Sellers should evaluate the claim with the help of counsel and decide whether to participate in the APEX process or prepare a defense. Failure to respond may result in automatic removal of the listing, and failure to act early can limit your strategic options.

Conclusion

The APEX program represents a significant evolution in how Amazon handles patent disputes on its platform. For utility patent owners, it offers an efficient enforcement mechanism, particularly where cost and speed are priorities. However, successful use of the program requires procedural diligence, legal strategy, and proactive communication. When combined with traditional IP enforcement tactics such as cease and desist communications, APEX can be a powerful tool for protecting patent rights in today’s competitive e-commerce environment.

For questions about initiating or responding to an APEX proceeding—or for assistance with broader patent enforcement strategies—contact Derek Fahey, Esq. and the attorneys at The Plus IP Firm. We can guide you through the process and help you protect your rights effectively.