Navigating Amazon’s Neutral Patent Evaluation in Real Life: Part I

By Angélique McCall
February 11, 2020

“If both parties agree to participate in the neutral evaluation, Amazon selects a neutral third-party patent lawyer and requires each party to pay the evaluator a $4,000 deposit…. The prevailing party in the Patent Neutral Evaluation Process is refunded the $4,000 deposit.”

You come up with a brilliant idea for an invention, pour your heart and soul into reducing it to practice and spend a great deal of time and money to get a patent. You receive the patent registration certificate, frame it and hang it on your wall. You think, “This is great! I’ve got a patent and now no one can copy my invention!” You form a company and start selling your new product online. A few months later, you log on to your Amazon.com account and see that some seller in some far away country is offering your exact product on amazon.com. Now what?

This is the all too familiar story clients often face, and the exact situation one of my clients—we’ll call him Bill—brought to me a few months ago. Luckily, Amazon provides weapons for patent owners like Bill to deploy in order to combat patent infringement on Amazon. Amazon’s latest tool offered to its authorized sellers is called the “Neutral Patent Evaluation Process.” In part one of this series of articles, I will outline the preliminary steps I took to initiate Amazon’s “Neutral Patent Evaluation Process.”

Background

Bill discovered certain sellers on Amazon were selling and offering for sale infringing products in early October 2019. He wanted the accused products removed from Amazon before Black Friday, the kickoff to the holiday shopping season. After I conducted an infringement analysis and determined that the products listed on Amazon were in fact infringing, Bill and I devised a two-prong plan of attack. First, we decided I would send cease and desist letters to all the infringing sellers. We decided that if a seller responded to the cease and desist letter with a desire to amicably resolve the infringement issue, I would send an agreement in which the seller would agree to remove the infringing products from Amazon by a certain date. However, if the seller chose not to comply, we decided we would move to prong two—the “Neutral Patent Evaluation Process” offered by Amazon.

The Process

The Neutral Patent Evaluation Process is a relatively new program launched by Amazon in 2019. It is limited to utility patents, is confidential, voluntary and comparatively low-cost (compared to federal patent litigation or the process to stop the importation of infringing products at the border). The Neutral Patent Evaluation Process is limited to one claim from one unexpired U.S. patent and follows this basic structure:

  1. The patent owner requests to participate in Amazon’s Neutral Patent Evaluation Process.
  2. The patent owner also submits a statement identifying the accused infringing products by their Amazon Standard Identification Number (or ASIN) and explains how the products infringe the patent. The number of products a patent owner may accuse is limited to 50 products.
  3. Upon receipt of the patent owner’s request and the list of accused products, Amazon sends a neutral patent evaluation agreement to the patent owner and the infringing seller(s). Both must complete and execute this agreement in its entirety. The infringing seller has a three-week period of time to consider the agreement and to notify Amazon whether it agrees to participate in the Neutral Patent Evaluation Process. If the seller agrees to the evaluation, its listings remain active until the conclusion of the neutral evaluation. If, however, the seller does not comply with the agreement, or if the seller does not agree to participate in the evaluation process, the listings for the seller’s accused products are removed from Amazon’s marketplace.
  4. If both parties agree to participate in the neutral evaluation, Amazon selects a neutral third-party patent lawyer and requires each party to pay the evaluator a $4,000 deposit.
  5. After both parties pay the deposit the evaluator, the evaluator establishes a schedule for the submission of written arguments by both parties. Generally, the patent owner has 21 days to submit its initial arguments, the seller has 14 days to respond, and the patent owner has 7 days to optionally reply. No modifications to the schedule are permitted. The evaluator must announce his or her decision within 14 days of the patent owner’s reply deadline. The evaluator determines that the patent owner is or is not likely to prove that the accused product infringes the asserted claim. The evaluator only provides an explanation for the decision if he or she decides in favor of the seller. Some reasons the evaluator may cite for deciding in favor of the seller include: (1) the accused product does not infringe (i.e., it does not include all elements of the asserted claim); (2) a court has found the patent invalid or unenforceable; or (3) the accused products (or physically identical products) were on sale more than one year before the earliest effective filing date of the patent.
  6. If the evaluator determines that the accused product infringes the patent, Amazon will take down the listings for the accused products.
  7. If the evaluator’s conclusion is in favor of the seller, the accused products will remain listed on Amazon.
  8. The prevailing party in the Patent Neutral Evaluation Process is refunded the $4,000 deposit. The $4,000 deposit from the losing party is retained by the evaluator. If there are multiple sellers who paid the $4,000 deposit but did not prevail, a total of $4,000 is retained by the evaluator. The remaining amount in excess of the $4,000 deposit is donated to an Amazon Smile charity of the patent owner’s choice. Amazon does not retain any portion of the deposit.
  9. The losing party may not file an appeal or request reconsideration. However, the patent owner may commence a federal court action for patent infringement or the seller may file a federal declaratory judgment action as to infringement or validity of the patent.

So Far So Good—Steps 1 Through 3

On October 30, 2019, Bill and I sent a letter to the “Amazon.com Legal Department” asking Amazon to initiate and allow Bill to participate in the Neutral Patent Evaluation Process. In the letter, we identified Bill’s patent, listed the accused products by their ASIN numbers and described how the seller’s products were infringing claim one of Bill’s patent. We additionally included the complete patent infringement analysis, which consisted of drawings from the patent and photographs of the infringing products. Finally, we described how Bill has already sustained significant damages from the sale of the infringing products on Amazon and argued that he would continue to be harmed if Amazon did not take down the listings for the accused products.

The very next day, Amazon sent the following correspondence to the infringing sellers requesting that they each contact Bill directly to resolve this matter:

After Amazon sent this correspondence to the infringing sellers, many of them contacted Bill and myself in an effort to reach a resolution. However, several sellers disagreed with my analysis and refused to take down their infringing products. (One in particular accused Bill of “bullying him” because he was the “little guy” in the industry. Yet, Bill, too, is a “little guy” and merely wished to protect and enforce his hard-earned patent rights.) Others completely ignored Amazon’s suggestion to contact us.

On November 19, 2019, we sent Amazon a follow-up letter to update them with a list of those sellers with whom we did not reach a resolution, those who disagreed with my patent infringement analysis and those who ignored us entirely. We explained to Amazon that we wanted to pursue the Neutral Patent Evaluation Process with the remaining sellers.

On December 4, 2019, Amazon sent the following notice to Bill inviting him to participate in the Neutral Patent Evaluation Process:

The evaluation agreement attached to Amazon’s email was sent not only to Bill but also to the infringing sellers. Amazon requested basic information from both parties including names, addresses, contact information, and the ASIN numbers of the accused products. Bill submitted his completed and executed evaluation agreement on December 12, 2019.

On December 17, 2019, Bill received the following correspondence from Amazon, which describes the next steps of the Neutral Patent Evaluation Process:

The evaluation agreement attached to Amazon’s email was sent not only to Bill but also to the infringing sellers. Amazon requested basic information from both parties including names, addresses, contact information, and the ASIN numbers of the accused products. Bill submitted his completed and executed evaluation agreement on December 12, 2019

From December 17, 2019 to the beginning of January 2020, Bill and Amazon continued to communicate with each other about the evaluation process. Then, on January 7, 2020, Amazon sent Bill an email informing him that “the sellers were notified and invited to participate [in the evaluation process] on 1/1/20” and that the sellers “have 21 days to [notify Amazon whether they agree to join in the evaluation].” Amazon closed by stating “[w]e will be back in touch with you following [the sellers’] response deadline of 1/22/2020 to let you know whether or not the case will proceed to the evaluation phase.”

Cliffhanger

Now, we wait to see which sellers, if any, wish to participate in the process. If a seller agrees to the evaluation, Amazon will select a neutral patent evaluator from a list of attorneys experienced in patent disputes. At that point, Bill and the sellers will each receive from Amazon instructions on how to wire the $4,000 deposit to the evaluator. If a seller does not participate in the neutral evaluation or does not comply with the evaluation agreement by January 22, 2020, Amazon intends to remove that seller’s listings of the accused products from the Amazon marketplace.

Thus far, having completed steps 1 through 3, Bill and I have been quite pleased with Amazon’s Neutral Patent Evaluation Process. Amazon has been very prompt and responsive in assisting us with this patent dispute. Bill and I look forward to working with Amazon and completing the next steps, if necessary. Stay tuned for an update in my next installation of this series to see how it all pans out.

 

The Author

Angélique McCall

Angélique McCall is a registered patent attorney with Brackett & Ellis, PC. She has experience representing clients in matters involving complex commercial litigation in the oil and gas industry, patent law and representing insures in matters involving coverage and bad faith.

Ms. McCall has worked as a Patent Examiner Extern at the United States Patent and Trademark Office (USPTO). She also has wide-ranging experience in domestic and international corporate administration. She served as a project manager for scientific microbiological research in cooperation with the United States Department of Agriculture.

For more information or to contact Ms. McCall, please visit her Firm Profile Page.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 31 Comments comments. Join the discussion.

  1. angry dude February 11, 2020 12:51 pm

    I do not eat at wholefoods anymore – makes me sick at the stomach realizing I am eating bezos cooking

    Break them up already, pleeeeaze !

  2. angry dude February 11, 2020 12:57 pm

    This whole proposal is totally stupid, unlawful, insulting to patent holders and everyone else (except bezos and co.)
    disgusting

  3. Pro Say February 11, 2020 3:39 pm

    Thanks Angelique. Great, actionable information.

    At least with your particular experience, this sounds like an excellent program.

    Now, Mr. Bezos, about those patents Amazon’s infringing . . .

  4. Night Writer February 11, 2020 3:51 pm

    Wow. I’d guess this is evidence for breaking up Amazon to have so much power to remove products if they feel they infringe a patent. Wow.

    Weird too that Amazon is actually, in effect, granting an injunction and one is almost never granted in federal court.

    Oddly, this seems to add to the power of a patent, but does so at the mercy of Amazon.

  5. Night Writer February 12, 2020 3:02 am

    This is also telling that the US government system of patents is so broken that Amazon has to arbitrate these issues.

    This is 1) really sad that a private company has to do this; 2) scary that a private company has so much power that they can now determine how patents are handled for a large segment of the market; and, 3) probably just the start.

    This is an excellent explanation of the situation. Fact based and step by step instructions.

  6. Anon February 12, 2020 9:48 am

    There appears to be too much hysteria and not enough cogent reasoning here.

    First thing to keep in mind is that this is solely within the private marketplace OF Amazon’s own ecosystem.

    Ratchet back the rhetoric please, stop for a moment, think, and recalibrate the comments, all of you.

    Directed hyperbole may be an occasional worthwhile tool. Unfettered, unthinking and overextended hyperbole tends to be the opposite.

  7. xtian February 12, 2020 10:06 am

    Was there anything in the “executed evaluation agreement” that limited the liability of Amazon as an infringer? If Amazon disagrees with your assessment and allows the products to remain on their market place, and you further pursue infringement action in the courts, do you now have a stronger argument that Amazon should be named as a defendant? With these procedures, it appears Amazon is acting more like a re-seller, not just a marketplace for goods.

    Would enjoy hearing others thoughts.

  8. Anon February 12, 2020 12:40 pm

    xtian,

    That’s an interesting question. It does appear that Amazon IS incurring some liability by being more than merely a marketplace.

    Some of that of course comes from existing laws that mandate marketplace providers actions in regards to products within.

    I have no doubt though that Amazon covers itself with provisions in the agreement that waive rights to pursue Amazon independently.

    In fact, from a “Rational Actor,” point of view, this is really a VERY “shiny” decoy that may well serve to inoculate Amazon from liability (for patent holders that are not that savvy).

    This makes HUGE sense from Amazon’s risk viewpoint.

  9. Night Writer February 12, 2020 1:36 pm

    Anon 6 :>Directed hyperbole may be an occasional worthwhile tool. Unfettered, unthinking and overextended hyperbole tends to be the opposite. Great points.

  10. jacek February 12, 2020 1:46 pm

    What next? Facebook acting as judge in foreign adoption cases? What about Instagram rulings in immigration cases? It is illegal. But of course Facebook wants to issue their own currency. The Big tech arrogance is beyond imagination.

  11. Night Writer February 12, 2020 3:06 pm

    10 jacek great points. It does seem like this from Amazon is going too far.

    My comment @9 was meant to say that Anon @6 had no support for his/her contentions and that xtian @7 had great points.

  12. Anon February 12, 2020 4:11 pm

    Night Writer,

    Exactly what type of support is needed for the self evident facts that I have presented?

    You seem very off from your usual game today.

  13. Anon February 13, 2020 7:09 am

    jacek,

    Unlike xtain, I do not find your points especially interesting or helpful.

    Facebook acting as judge in foreign adoption cases?
    The Amazon case is not “acting like a judge” in a matter unrelated to the matter in which Amazon is acting.

    Your analogy is flawed as Facebook has nothing to do with adoption cases, foreign or domestic.

    What about Instagram rulings in immigration cases?
    Same flawed analogy – Instagram has nothing to do with immigration cases.

    You offer only wild and flawed analogies – the very type of unfettered, unthinking and overextended hyperbole that tends to the opposite of being a worthwhile tool.

    It is illegal.

    What exactly is it that you believe to be illegal? That Amazon has a manner in which to remove illicit material from its own marketplace?

    Amazon’s path is not a mandatory path. One still maintains the entire legal path of pursuing patent infringement cases in the courts. One still maintains the entire legal path that includes sending cease and desist letters. There is NO mandated taking leave of the legal system just because Amazon offers an optional settlement mechanism.

    For the owner of IP looking into the Amazon marketplace and seeing what it believes to be ‘bad goods.’

    Amazon’s path IS great for Amazon.

    That does not make it illegal.

    Leastwise, not in its mere existence.

    Amazon’s path IS great for Amazon because in part it offers a “shiny” seemingly very cheap path that “appears” fair and that “appears” to be a direct and timely intervention and control against “bad goods” in ITS marketplace.

    Again, the benefit of Amazon’s offering is MAINLY for Amazon. The ‘slick’ part is that it is packaged to be so very shiny for those looking into Amazon’s market and seeing what may be ‘bad goods.’

    ALL that Amazon’s marketplace control mechanism does is control the marketplace (of Amazon’s) in a manner in which those so choosing, MAY partake. The reach of the system has NO outside-of-Amazon-market-collateral effect – for those not voluntarily joining that optional mechanism.

    Now let’s contrast your wild hyperbole with the better thrust from xtian.

    xtian does NOT extend any analogy to things that Amazon may have no connection with. Instead, xtian is on point, with an inquiry into how Amazon may be implementing its own market control system, and the possibility of strings being attached to those that may optionally choose to partake in Amazon’s own market control system.

    There is NO excessive unfettered, unthinking and overextended hyperbole in wondering about the benefits that Amazon grants itself in the optional program that it offers for its marketplace control mechanism.

    xtain posits an excellent question – one FOR those who may choose the optional mechanism. What strings may be attached for those that choose ‘the shiny?’ By jumping at the “low cost, seemingly quick, and seemingly impartial” mechanism, does one surrender other legal options (and other legal options AGAINST Amazon itself)? If those types of strings are present, and the trap for the unwary is well-camouflaged, people may well regret jumping quickly into a deal that looks too good to be true.

    There may well be some slick dealing in Amazon’s ‘terms’ for optionally choosing what appears to be a very cheap, quick and ‘impartial’ evaluation. The terms even may well rise to a level of illegality (along the lines of a shrink-wrap license – albeit MOST LIKELY available prior to committing to the optional program).

    Additionally, there may be issues with Amazon setting up its market control mechanisms with ONLY this option. This may stem from the fact that the government may have imposed certain requirements on those that establish and run marketplaces, and IF Amazon sets up only a single path for users in its marketplace, it may be abusing its role with that only single path having such indemnities that circumvent OTHER laws in place.

    But note that the legal reasoning to get to THIS issue is so very different from xtian’s measured question as compared to the wild and over the top hysteria of your and other’s posts.

  14. Anon February 13, 2020 7:24 am

    As anyone who has been around these parts for any length of time can tell you, my views are extremely Pro-Patent.

    That being said, in discussing potential traps here in Amazon’s self-help mechanism, there is an indication of coercion present. But that indication is NOT for the holder of IP. That indication is for the alleged infringer.

    To wit: “If, however, the seller does not comply with the agreement, or if the seller does not agree to participate in the evaluation process, the listings for the seller’s accused products are removed from Amazon’s marketplace.

    This appears to be a NON-optional “Sword of Damascus” approach that may well be likened to a “guilty until proven innocent” market control mechanism.

    Now mind you, those who WANT to partake in the marketplace created and controlled by Amazon DO partake of their own free will, and MAY be entering into agreements that surrender their own “innocent until proven guilty” natural US legal state of affairs.

    But this would be the choice of the seller of goods wanting to submit themselves to the Amazon marketplace.

    If anything, this type of fact situation highlights the inaccuracies and the ‘over-the-top’ hyperbole that is unhelpful in exploring where the boundaries of legality may lie. No one partaking in Facebook and Instagram EVER think that they are entering a market related to adoptions and immigration because point in fact they are NOT entering a market related to adoptions and immigration.

  15. Night Writer February 13, 2020 9:28 am

    @12 Anon

    FB and Instagram examples I don’t think were meant to be taken seriously.

    As to my comments, they are directly on point. The issue here is market power. Amazon has so much market power that they are able to enforce patents by, in effect, giving the patent owner an injunction. But the issue is whether this is really justice or not. And whether Amazon has so much market power that they can dictate how patents are enforced.

    The fact is that there may not a viable alternative to selling on Amazon. And the fact is that a quick look at a claim chart and patent that results in your product being removed is rather harsh.

  16. anonymous February 13, 2020 9:54 am

    Patent Owner Bill accuses Infringer X of offering for sale an infringing item. Amazon also offers the item for sale, serving as a middleman between a customer and Infringer X. Amazon takes a cut of the proceeds from the sale by Infringer X. Amazon always gets its cut. AND Amazon also profits because the purchasers are induced into a $119/year Amazon Prime subscription, a 100+ million strong army of purchasers who encourage people like Infringer X to sell on its platform in the first place. Amazon is itself infringing by selling and offering for sale.

    So, now infringer Amazon wants Patent Owner Bill to PAY the infringer Amazon $4000. And for Infringer X to pay Amazon $4000. Ostensibly, loser pays, with the proceeds going to a “neutral third-party patent lawyer.” The Evaluator evaluates one claim only. The Evaluator never issues any opinion if infringement is found, but Amazon just removes Infringer X’s item listing. Neither Amazon nor Infringer X compensate Patent Owner Bill for any infringing sales already made.

    Amazon always keeps its $119/year Amazon Prime subscription fee. Amazon always keeps its cut of all infringing sales. Amazon’s OWN conduct is never called into question.

    If anything, this shows why there is need for a quick, inexpensive, judicial path toward actual injunction for patent owners, where a minimum million dollar expense and a 2-year wait for a trial aren’t warranted. A type of small claims patent infringement court.

    In other news, Jeff Bezos bought the $165 million Beverly Hills Geffen-Warner estate yesterday. And another $90 million plot from the estate of Paul Allen. Seriously, go look at pictures, and convince yourself this is still nothing in comparison to the $12 billion in wealth Bezos added THIS QUARTER ALONE. We can rest assured that Amazon is “good” because Amazon will pay $162 million in tax on $13.3 billion in profit, which equates to 1.2 percent.
    https://www.wsj.com/articles/looking-for-a-new-place-to-live-this-is-what-165-million-buys-11581559977
    https://www.cnbc.com/2020/01/30/jeff-bezos-net-worth-jumps-by-over-12-billion-after-amazons-big-quarter.html

    This concentration of wealth is not good. Acquiring it by patent infringement is really not good.

    Efficient Infringement sure is profitable. Congress, wake up.

  17. Anon February 13, 2020 12:37 pm

    Night Writer,

    Sorry by claiming “not serious” when there are SEVERAL posters all sounding in angst and over the top just does not support your comment (and directly supports my comment).

    I really don’t know why you would decide to take any issue with me.

    My issue with you is merely that you were absolutely incorrect in your comments towards me. You now add that there is an issue of “market power” and you suggest that there is no real alternative to the market created by Amazon.

    This is quite a different — and distinct — argument. You may have a point, but just as well, you may not. Factual support is likely needed to determine what you suggest (or the absence thereof).

    As to “so much market power that they can enforce patents” — this is off the mark for reasons that I have already provided. Whether or not a market maker (of any size) controls its market is entirely up to the system that the market maker has in place. You confuse things only because of size, but size is not determinative of the rule set of the market maker. Sure, more people may be affected by a rule set if the made-market is popular, but ANY made-market is not — and has not — removed alternatives. If Amazon were to disappear tomorrow, life would go on.

    Also, you have now missed twice the fact that what Amazon is offering is a voluntary mechanism for the IP holder.

    Seriously, you would do better by paying attention to what I have written. I do spell out how the harshness for the accused infringer is in fact more of a Damascus Sword, as well as point out that any such “coercion” effect is already covered in the terms set by Amazon — and accepted of their own accord — by those wanting to play in Amazon’s sandbox.

    The post by anonymous after yours is a much better post, as the content there is NOT a reach and may well be more reflective of issues present (again, without the unhelpful hyperbole).

  18. Anon February 13, 2020 2:17 pm

    And some pushback from those accused of infringement:

    https://news.bloomberglaw.com/ip-law/amazons-judging-of-ip-disputes-questioned-in-sellers-lawsuits

  19. Night Writer February 13, 2020 2:37 pm

    @17 Anon

    Your post denies that Amazon has market power and that the patent enforcement scheme Amazon has set up is a result of their market power. I disagree and I think all the evidence is in my favor. The other issues are really secondary because if Amazon did not have market power and there were equivalent alternatives available, then it would be less likely that the patent scheme would be unfair to either party as the parties would have alternatives. Here all the evidence I’ve seen tells me that the market has shrunk to Walmart and Amazon with Amazon dominating the online marketplace and Walmart dominating the bricks and mortar space.

    I am not going to debate further. I doubt you could find a recent article from a respected economist that would disagree with me.

  20. Anon February 13, 2020 6:33 pm

    Night Writer,

    I make NO such denial. What I do question is whether the quantum of market power rises to the level that you simply assert.

    Let me remind you (again) that the immediate point here is that the Amazon mechanism is ONLY in play within the Amazon market, so technically speaking, YOUR view of market power is not even in play.

    The ‘patent scheme’ of Amazon IS what it is regardless of anything outside of Amazon.

    Your “less likely… would be unfair” simply does not reach as a matter of pure logic.

    This is why I explained the situation as I have done in post 17. And no, the point of the post is NOT ‘secondary’ as you claim. YOUR point is secondary. You can surely assert that you will not debate this, and that assertion will be as it is (quite in fact there is NO debate, you are simply wrong).

    Further, you keep on claiming and referencing “all evidence” and yet, I see that you have provided NO evidence. What is this “all evidence” that your refer to? Have you seen any cogent evidence that would serve due in a court of law, or is this merely your feelings based on what you personally have seen? I recognize that there is a fair amount of snark in this reply, but no less than you deserve, as you seem intent on taking issue with my positions, then when put to the test and you cannot offer any real cogent counter to my position, you merely want to declare my positions to be “secondary,” when clearly what I have written is directly on point. That you want ME to turn and do the work of finding a respected economist is completely besides the point that YOU have not provided any evidence in the first instance (including any respected economist that DOES agree with you).

    Not that you may well be correct (with some provision of evidence, not of record yet) in that Amazon’s own personal market may dominate all online marketplaces. And that would be swell as to establish your secondary point, but given ALL the other points on the table, it is still not dispositive that the Amazon dominance and market power — and its subsequent voluntary patent enforcement scheme usurps ANY federal patent power or procedure of enforcement (from the patent holder’s perspective).

    Quite a different point, I have ALSO noted that there may be some trouble for Amazon from the OPPOSITE angle (the alleged infringer angle). Unlike you, however, instead of merely claiming ‘evidence,’ I also provided a link to a story on the very items that I provide.

    As you should be aware, I do not shrink from friend or foe in a spirited debate. As always, you (as may anyone) can choose to stop debating at any time. Just don’t make the mistake that your choice in stopping means that you are ascendant in the debate. That would be an egregious error.

  21. Night Writer February 14, 2020 4:59 am

    @20 Anon
    “The ‘patent scheme’ of Amazon IS what it is regardless of anything outside of Amazon.” Statements like this are ridiculous. Your call for evidence of Amazon’s market power is also ridiculous. Just go and google the market sizes and Amazon’s share. And in particular the number of households with prime (what is it 80 million households?) And anecdotally just speak to people that sell online.

    You just don’t get it. In a free market, this type of patent scheme would raise questions regarding people’s rights, but with a company with enormous market power it raises anti-trust questions. The issue is simple. And the same one that is eternal and the one that the Sherman Anti-Trust Act was meant to address.

    In a free market you can rely on the market to give the consumers a fair shake. But with market power you cannot.

    Frankly, I don’t think you could get a single objective economist to agree with your position. This is an out liar in that it illustrates what can happen because of market power.

    I get the feeling you haven’t had many economics classes. I have.

  22. Anon February 14, 2020 9:20 am

    Statements like this are ridiculous.

    There is nothing ridiculous about the statement, as it is an objective fact.

    You don’t get to change facts that you may not like.

    Also, you misconstrue what I call for. I am NOT calling merely for evidence of Amazon’s market power. I am calling for evidence that the size of Amazon’s market power has in fact created the condition that you suggest. Please note the actual words I have been using. You seem to think that feelings and anecdotes are enough, and all that I asked for was what a court would ask for. You are the one making an assertion, and you should note that I am even providing that your assertion MAY be true. But it also may not be true because — as I said — if Amazon disappears tomorrow, life would not miss a beat.

    The plain fact is that Amazon’s ‘scheme’ operates ONLY within Amazon’s sphere of its market.

    You don’t get to change that fact.

    Your secondary point is indeed a secondary point. I am NOT saying that such a secondary point is an unimportant point, and by all means, if the separate violation of Amazon being so big and ubiquitous brings about anti-trust violation status (which is actually the legal point you want to make — whether or not you are aware that THAT is the legal point that you are trying to make), then THAT is a separate discussion.

    As to experts and classes, most likely I have had MORE than economics classes than you. I just have a better handle on the different legal topics at hand. And again, please feel free to provide YOUR expert first — but also be prepared to recognize that you have side-tracked into a secondary discussion for which you want to bandy about that expert. As I have noted, I might even celebrate your expert, while (again) pointing out that even with such an expert, you have missed the boat on the optional path being presented by Amazon.

    Let me know when Amazon’s optional path takes away ANY patent holder’s legal options.

    (ALSO – and you seem strangely silent on this – note that I am NOT giving a full “all-clear” to what Amazon is doing, and note that Amazon’s trouble may be coming from the opposite end of the spectrum in regards to how it is treating the sellers in its marketplace, for whom the notion of “optional” appears to be a false notion. Again (and I should say, YET again), Amazon likely has in its seller agreements terms that sellers have signed that relinquish certain rights of the sellers.

    Sadly, YOU don’t even seem to realize that the path of the secondary issue is more likely to be successful by turning your focus to the sellers rather than what patent holders (who need not even BE active in Amazon’s market) have been provided.

    And probably the most hilarious thing about our exchange is the fact that I HAVE studied market dynamics in private markets and the intersection of state control for pirated and false goods designations. Have you? I am pretty sure that you have not. Instead, you are operating on a more general basis — and operating more on feelings and anecdotes, AND missing the plain fact that there is more than one issue, and you have not focused on the MAIN issue.

    Our system simply DOES allow private markets to be made, and allows those who run such private markets to set up their own rules. Now mind you, the government will mandate some rules that the private markets will have to meet. But so far, NOTHING that you have squabbled about reaches the patent holder and Amazon’s scheme — in regards to the patent holder. Leastwise, nothing that YOU have raised. Others, like myself and like xtian and like anonymous HAVE raised colorable items worth exploring.

    This too is why I have contrasted the postings of xtian from those who have employed unhelpful, umfettered, unthinking and overextended hyperbole.

  23. xtian February 14, 2020 10:58 am

    Getting back to my question: Angelique – can you post a copy of Amazon’s “evaluation agreement” so we can stop speculating?

  24. Mark S Nowotarski February 15, 2020 8:45 am

    xtian@7 You raise a good point about Amazon’s liability, but from the standpoint of my clients who are startups, the key issue is to get infringing products removed as quickly as possible.

    Having said that, I can see the competitor’s point of view that sometimes patent owners see infringement when there is none and they feel their products are being pulled unjustly. The Amazon program seems to be a step in the right direction for both parties.

    Ms. McCall, Thank you for sharing this information. I look forward to the follow up.

  25. angry dude February 15, 2020 12:54 pm

    Mark S Nowotarski @24

    “…but from the standpoint of my clients who are startups, the key issue is to get infringing products removed as quickly as possible”

    Dude,

    What if infringing product is Amazon’s own ???

    “Alexa, you are infringing on my patents!
    I want your rich daddy bezos to kill you as quickly as possible”

    Huh ???

  26. Night Writer February 17, 2020 9:03 am

    anon, all I can tell you is go read about market power and free markets.

    The things you are saying are in discord with the basic principles that virtually all economists agree on.

  27. Anon February 17, 2020 1:52 pm

    Night Writer,

    As I have already informed you: I am well versed in the areas that you would have me read.

    There is NO discord in what I am saying.

    There is a lack of YOUR understanding in that there are multiple items under consideration, and that you are merely wishing to elevate one item as to make that one item the controlling item.

    It simply is not.

    I “get” what you are saying. Sadly though, you seem unable to understand that I “get” what you are saying, and that what you are saying is but a tangent to the underlying issue here.

    You want to make a jump that simply is not shown to exist. I have fully provided that IF the jump you want to exist does exist, THEN your arguments may come into play.

    The bottom line though is that your arguments also may NOT be in play. Consider this simple thought: does the presence of Amazon control or destroy ALL neighborhood physical flea markets (among a very large host of other secondary market mechanisms)?

    You confuse a particular segment with being the only path for the type of market.

    The error is yours, not mine.

  28. angry dude February 17, 2020 4:46 pm

    Anon @27

    “…does the presence of Amazon control or destroy ALL neighborhood physical flea markets ?”

    Dude, flee markets are not the province of Amazon – that’s what EBay does
    The reason they still exist is that EBay is greedy with listing fees and sales commission …

    Check your vision – Night Writer is correct

  29. Anon February 17, 2020 7:44 pm

    angry dude,

    Your reply SUPPORTS my position.

    Sadly, you seem too irrational to figure out why.

  30. xtian February 18, 2020 8:59 am

    Mark @24 – I agree this may be good for small clients, just like Amazon Brand Registry for trademarked goods. However, as Anon has discussed, I am curious as to the “strings” attached to this process. As an adviser, I need to be able to inform my client of all risks, benefits, and drawbacks of a particular course of action. Hence my curiosity about what is actually in the agreement. (Something which is not yet made available to us by the author?)

    Curious – Does Amazon claim that the agreement is confidential, hence why the author hasn’t posted it?

  31. Anon February 18, 2020 12:22 pm

    Great follow-up xtian.

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