Partner
The world of e-commerce is continually thriving, and platforms like Amazon, Etsy, and Shopify have made it easier than ever to sell products worldwide. However, online selling comes with its own risks, some of which many e-commerce sellers overlook, such as patent infringement. If you are sourcing products or launching something new, you may find yourself using someone’s patented idea without even realizing it. And then before you know it, you are receiving cease-and-desist letters and other legal action. In this article, we break down what patent infringement is and how you can avoid costly mistakes as an online seller.
Patent infringement happens when you make, sell, or import a product that is protected by someone else’s patent without permission. A patent gives its owner exclusive rights to an invention. This could be a product’s feature, manufacturing method, or even software-related processes. It is worth noting that intent does not matter. Even if you did not mean to, you could still face consequences for patent infringement. For example, if a supplier sold you a product that includes a patented mechanism and you list it for sale, you may still be liable.
If you are accused of infringement, the platform can take several actions. First, once a patent holder files a report, your listing may be removed almost immediately. That alone can lower your rankings and even stall sales. Second, if complaints persist or if you disregard notices, your seller account may be suspended. Lastly, beyond platform penalties, a patent owner may pursue legal action, which can result in legal fees and even long-term reputational damage.
The following are ways you can avoid patent infringement as you run your business online:
Before launching your product, take time to check if key features or functions are already patented. Public databases, such as the USPTO and WIPO, are good starting points, especially if you plan to sell in multiple countries.
If you work with overseas manufacturers, do not assume that they have taken care of intellectual property issues. Ask questions and request documentation to ensure you are not selling a product that is a copy of an existing invention.
If a patented feature is essential to your product, licensing can be a safer route. Licensing can help you use such features while compensating the patent owner.
If you receive a cease-and-desist letter or a marketplace takedown notice, do not ignore it. Respond promptly and review the claim before the issue escalates.
A consultation with an internet law attorney can help you spot risks early, especially if you’re scaling or launching a new product line.
For more information, contact the experienced Internet Law and E-Commerce Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
Patent infringement under 35 U.S.C. §271 comes in several forms. Direct infringement occurs when you make, use, sell, offer to sell, or import a patented invention without authorization—regardless of whether you knew the patent existed. Indirect infringement encompasses induced infringement (actively encouraging another party to infringe) and contributory infringement (supplying a component that has no substantial non-infringing use knowing it will be used to infringe). For e-commerce sellers, the most common exposure is direct infringement through product listings. Patent damages under 35 U.S.C. §284 are “in no event less than a reasonable royalty,” and courts can award enhanced damages of up to three times the actual amount in cases of willful infringement.
Amazon operates its own intellectual property dispute programs that function entirely outside the federal court system. The Patent Evaluation Express (APEX) program allows patent owners to initiate a neutral evaluation of infringement claims, and sellers accused of infringement may have their listings removed pending the outcome. Amazon’s Project Zero gives enrolled brand owners the ability to remove suspected counterfeit listings directly. These programs are fast and often favor patent holders, which means sellers can lose revenue before any court has made a finding of infringement. Understanding how to respond to Amazon IP complaints—and how to file a counter-claim with supporting documentation—is essential for any business that relies significantly on Amazon as a sales channel.
Before launching a new product line, consider obtaining a Freedom to Operate (FTO) opinion from a registered patent attorney. An FTO opinion is a formal legal analysis that evaluates whether your product or process would infringe any existing, enforceable patent claims. It serves two critical functions: it helps you identify and design around potential conflicts before incurring manufacturing and marketing costs, and it demonstrates good faith in the event you are later sued—which can negate a finding of willful infringement and prevent enhanced damages under 35 U.S.C. §284.
Navigating patent law as an e-commerce seller requires both offensive strategy—protecting your own innovations—and defensive vigilance against others’ patents. Revision Legal’s patent attorneys help businesses with FTO opinions, patent searches, USPTO filings, and responding to infringement claims. Contact us to schedule a consultation, or visit our patent law practice page.
E-commerce sellers often focus exclusively on utility patent risk—whether a product’s function or mechanism is patented—while overlooking design patents and trade dress protection. A design patent under 35 U.S.C. §171 protects the ornamental appearance of an article of manufacture, not its functional aspects. Design patents are frequently used to protect the distinctive visual appearance of consumer products, packaging, and user interfaces. If your product looks substantially similar to a competitor’s design-patented product, you may face infringement liability regardless of whether the underlying function is identical.
Trade dress protection under the Lanham Act provides an additional layer of protection for product appearance that has acquired “secondary meaning”—meaning consumers associate the look with a particular source. The distinctive appearance of a product, its packaging, or even the layout of a retail store or website can constitute protectable trade dress. For e-commerce sellers, trade dress claims are commonly asserted alongside patent claims in cases involving product copying, and the combination can be particularly powerful because trade dress protection, unlike patent protection, does not expire. Conducting a comprehensive IP clearance before launching a new product should include a design patent search and an evaluation of trade dress risk, in addition to a utility patent search.
If you receive a cease-and-desist letter, a complaint filed in federal court, or a platform IP dispute alleging patent infringement, your response in the first 72 hours matters significantly. Do not ignore the notice and do not make admissions—oral or written—about your awareness of the patent or the design of your product. Contact a registered patent attorney immediately. Your attorney can evaluate the strength of the patent claims, assess whether your product actually falls within the patent’s claims (which requires a careful claim construction analysis), identify prior art that may invalidate the patent, and advise on whether to negotiate a license, design around the patent, or defend the litigation. In many cases, e-commerce infringement disputes resolve through licensing negotiations rather than litigation, but you need legal counsel to negotiate from an informed position.
Patents serve two primary purposes: giving rights to the inventor and preventing others from copying the inventor’s work. That protection is what encourages innovation. However, before you invest time and money in filing a patent, there is a critical step you should not rush through, or worse, skip, and that is the patent search. A […]
Read more about Five Tips for an Effective Patent Search Strategy
Patent lawyers and IP lawyers overlap but have different focuses. Here’s what each does, when you need one versus the other, and how to choose the right attorney.
Read more about Patent Lawyer vs. Intellectual Property Lawyer
Nunc pro tunc IP assignments are retroactive transfers used to correct gaps in ownership chains for patents, trademarks, and copyrights. Here’s how they work.
Read more about IP Nunc Pro Tunc Assignments Explained