How to Get Your ASIN Reinstated After a Patent Infringement Complaint?

When your ASIN is delisted due to a patent infringement complaint, you need to submit a letter of non-infringement. However, the letter of non-infringement needs to focus only on noninfringement, not on other extraneous arguments.  Otherwise, Amazon’s seller support may reject the claim of noninfringement. This article explains which arguments to present, which ones to avoid, and how to navigate the process to get your ASIN reinstated.

Step 1: Choose Your Options

When Amazon delists your ASIN, you have four options:

Option 1. Get a Retraction from the Patent Owner

Technically, you have an option to ask the patent owner to retract the complaint.  However, this is impractical unless the patent owner is willing to negotiate a patent license or you can threaten them with legal action. Otherwise, patent owners have little incentive to retract their complaint.  For example, you have to threaten them with a Declaratory Judgment (DJ) action which is expensive and time consuming. If the patent holder doesn’t want to go through the DJ Action, then that might bring them to the negotiating table.  In many situations, this option is neither feasible nor cost-effective.

Option 2. Submit a Letter of Non-Infringement

The more effective option is submitting a letter of non-infringement. However, attempting to write this letter yourself often leads to irrelevant arguments that do not address the substance of the issue, such as:

• “I have a patent on my product.”
• “The patent is invalid.”
• “My manufacturer developed the product.”

These arguments, as explained later, are legally irrelevant to Amazon’s request for information. The letter to Amazon needs to focus solely on non-infringement.

Hiring a registered patent attorney to draft this letter is highly recommended. The attorney’s analysis must explain why your product sold under the ASIN at issue does not infringe the patent at issue by comparing the patent claims to your product.

Option 3. Obtain a Court Order

This option involves filing a lawsuit to challenge the patent owner’s claims or obtain a ruling of invalidity. However, this is very expensive and time-consuming. Unless your product generates significant revenue, pursuing a court order is often not worth the effort.  For the vast majority of cases, option 2, the letter of noninfringement is your only practical option.

Option 4. Prior Sales

You also have the option of showing evidence that you sold the product under the ASIN more than one year before the priority date of the patent issue.  This is essentially an invalidity argument and the only one that Amazon will accept.  You can’t argue that someone else was selling the product listed.  You can’t argue that your product was like someone else’s product.  If you have this proof, this is the best path forward.

Step 2: Securing a Letter of Non-Infringement

The most effective way forward is to work with a registered patent attorney to draft a letter of non-infringement.  They will make the arguments using language that Amazon’s seller support are used to seeing and in the proper format.  Moreover, by utilizing a patent lawyer, it qualifies the opinion.

What Should the Letter Include?

1. Attorney Credentials
   • Clearly state the attorney’s state bar number and USPTO patent agent number so Amazon’s Seller Support can verify their qualifications.  Include any relevant links so that Amazon seller support doesn’t have to search for it.
2. Substantive Analysis
   • Provide a detailed claim-by-claim analysis that explains why your product does not infringe the patent.
   • Focus on specific differences between your product and the patent claims.
   • Use clear, concise language that is easy for a layperson to understand, as Amazon’s support team aren’t patent attorneys.
3. Visual Evidence
   • Include side-by-side comparisons of the patent drawings and your product to demonstrate how your product differs from the patented features.
   • Use annotated photos and diagrams to make the analysis clear and compelling.

What Arguments to Avoid?

Don’t include the following arguments.  They detract from the only issue that Amazon cares about – noninfringement.  Sellers often include arguments in their letters related to fairness but fail to address Amazon’s specific request of non-infringement. Avoid the following:

1. “I Have My Own Patent”
   • Why It Doesn’t Work: Owning a patent for your product doesn’t mean that you aren’t infringing on someone else’s patent.  A patent grants you the right to exclude but does not give you the right to make or sell your product. It can still infringe on someone else’s patent.
2. “The Patent at Issue Is Invalid”
   • Why It Doesn’t Work: Invalidity is completely different from noninfringement.  Amazon does not evaluate the validity of patents. They clearly state that they want you to address non-infringement.  If you want to argue that the patent is invalid, you would need to sue the patent owner and secure a court order of invalidity.  Without a court ruling, this argument is irrelevant to Amazon’s review process.
3. “My Manufacturer Made the Product”
   • Why It Doesn’t Work: Patent law doesn’t look at who made the patent.  Anyone up and down the supply chain can be infringing on the patent claims.  Patent infringement is a strict liability issue, meaning the origins behind the product is irrelevant. If your product meets all the elements of the patent claims, it infringes regardless of who designed it, manufactured it or sold it. Blaming your manufacturer does not address noninfringement.

Focus your letter solely on proving non-infringement.

Step 3: Submitting and Following Up

When you submit the letter of noninfringement, clearly communicate that you are a responding to the patent infringement notice.  Seller support receives hundreds of emails per day and want to get through each of them as fast as possible.

Also, I would clearly identify the patent attorney who rendered the letter of noninfringement, provide relevant links to their active bar registration and also their USPTO patent agent number.  Be helpful.  This way, seller support doesn’t need to look this information up.  It isn’t an internal engineer rendering the opinion.  It’s a qualified patent attorney rendering the opinion.

Here is a sample email that you might be sent to Amazon’s seller support.

Subject: Letter of Noninfringement in response to Notice of Patent Infringement

To: Customer Service

Attached is a Letter of Noninfringement from our patent attorney. He is barred in the State of ___.  You can review his active license here: [insert link to state bar].  He is a registered patent agent with the USPTO. You can view his patent agent status here: [insert link to USPTO].

The attached Letter of Noninfringement is in responsive to the notice of patent infringement dated [insert date].

After submitting the letter of non-infringement to Amazon, your ASIN may not be reinstated. If that happens, take these steps:

1. Follow Up with Amazon

• Call Amazon customer service to inquire about the status of your case.
• Be polite but persistent, and ask for clarification why the letter of noninfringement has been rejected.

2. Address Feedback

• If Amazon provides a reason for rejecting the letter of noninfringement, work with your attorney to revise it and provide additional evidence.
• Promptly comply with any specific requests from Amazon to expedite the process.

Key Takeaways

1. Focus on Non-Infringement: The only issue Amazon cares about is whether your product infringes the patent—not whether the patent is invalid or who made the product.
2. Hire a Qualified Patent Attorney: A professionally drafted letter of non-infringement by a registered patent attorney is important because it identifies the qualifications of the person opining on the issue of noninfringement.  Although Amazon seller support aren’t patent attorneys, they are used to seeing the language and the format that patent attorneys use to show noninfringement.
3. Use Visual Evidence: Clear pictures and diagrams comparing your product to the patent claims are essential for a compelling argument.  A picture is like a thousand words.
4. Be Persistent: Follow up with Amazon to ensure your case is reviewed thoroughly and address any feedback they provide.

By following these steps and avoiding irrelevant arguments, you can effectively address the patent infringement complaint and work toward reinstating your ASIN.  No guarantees though.  Best wishes.

Have questions or need help navigating this process? Call us now at (949) 433-0900 or schedule a consultation to discuss your specific situation. Let’s work together to resolve the issue and get your listing reinstated!