APEX Procedure – A Revolutionary Tool For Consumer Product Manufacturers Selling On Amazon

Originally published in the 3rd quarter 2025 issue of The Illinois Manufacturer, an Illinois Manufacturing Association publication.

After a myriad of challenges, you finally made the product and protected it with a United States utility patent. But, how do you enforce it when foreign copycats are sitting next to your listing on Amazon?

Patent infringement cases have been known to outpace the market popularity of many consumer products—either because it takes too long, or costs too much, to enforce a utility patent against an infringer. If the culprit is foreign, getting them to come to the U.S. to stand trial is nearly impossible.

In 2022, Amazon flipped the script in favor of manufacturers and brands that hold U.S. utility patents to provide patent owners. They launched the Amazon Patent Evaluation Express (APEX) procedure as an efficient and cost-effective alternative to district court litigation to ensure their registered sellers can enforce their utility patents against knockoffs, copycats, and infringers.

My client, Pilot Automotive, took an early opportunity to use APEX to address foreign infringers that were competing with its emergency automobile battery charging products on Amazon (pictured). The procedure was smooth, streamlined, and highly impactful. We were able to achieve results in seven weeks that could not be delivered in District Court in a year. And did so at a fraction of the cost of filing a traditional infringement suit.

When deciding if you are going to enforce your utility patent using APEX against a concerning product on Amazon, consider the following:

• APEX is focused on utility patents issued by the United States Patent & Trademark Office. APEX is not currently available for U.S. Design patents or foreign issued patents.
• There is no hearing, no discovery, no depositions, no damages. The only issue on the table is whether the ASIN infringes your claims.
• Beware that the APEX process does not always keep you out of District Court. An accused seller can choose to avoid APEX by filing a Declaratory Judgment Action (DJ action) in District Court. A DJ action is a complaint filed by an accused infringer seeking a court order that their product does not infringe the asserted patent, or that the patent itself is invalid. If the accused infringer takes this step, APEX will not be initiated, and you will be fighting in a District Court in the infringer's backyard. The United States Supreme Court in SnapRays v. Lighting Defense Group held that the accused infringer could choose to file their DJ action in their home state when it is filed in response to an APEX procedure.
• The entire process takes about seven weeks. As a patent owner or an accused infringer, there is nothing more valuable than getting a decision like this—win or lose—in seven weeks. The cost of fully prosecuting an APEX proceeding is a fraction of the cost of District Court Litigation.

Below is a brief overview of the process:

1. You initiate an APEX proceeding within your Amazon Brand Registry account. You will be asked to identify one utility patent you own, and up to 20 Amazon Standard Identification Numbers (ASINs) that you claim to have been infringed. While it is recommended that you work through an attorney, you are not required to have an attorney initiate this process.
2. Once APEX has confirmed your utility patent has not expired (don't forget to pay those USPTO maintenance fees!), APEX will then notify the sellers of the ASINs that their product has been accused of infringement.
3. Accused sellers have 14 days to select one of three options: (1) agree to a neutral patent evaluation conducted by a patent attorney selected by Amazon, pay $4,000, and return a signed arbitration agreement, (2) contact you and negotiate the terms for an agreement for continued sale of the ASIN, or (3) file a declaratory judgment action in District Court.
4. If the seller does not respond within 14 days, their ASIN will be removed by Amazon. Many sellers get removed at this stage. The accused seller either just disappears, curing the problem, or they are unable to reach an agreement with you on the terms of continued sale. The $4,000 arbitration cost is also a reason many just disappear.
5. If the seller opts for the neutral patent evaluation, Amazon will assign a neutral patent evaluator. In my experience, Amazon does an excellent job of selecting these practitioners. At this stage, you will be asked to pay $4,000 as well, an amount you get back if you win. The neutral patent evaluator will then set a briefing schedule for the parties, and you will have 14 days to submit an opening brief. The accused infringer will have 14 days to respond, and you will have 7 days to reply.
6. APEX affords a very narrow defense to infringement. If the accused seller can show that they were selling the product before your patent priority date, then they can survive the challenge. Otherwise, the more expansive invalidity defenses that patent owners typically face in District Court are not entertained by the neutral patent evaluator.
7. The neutral patent evaluator has 14 days following the final brief to determine if it is likely that the accused ASIN infringes the asserted patent. This a binary decision – thumbs up or thumbs down.
8. If the Neutral gives your claim a thumbs up, Amazon will proceed to remove the accused ASIN from the Amazon marketplace. When dealing with foreign actors, this result is often better than chasing damages, as you now have market exclusivity on Amazon!
9. Following a win, Amazon allows patent owners to accuse additional infringing ASINs through the Brand Registry. Your APEX win will be provided an APEX ID number, and any other products that pop up will be taken down without having to go through the entire APEX process again.

The APEX process is fair, quick, and revolutionary for both patent owners and the accused. The true power of the APEX procedure is your ability to deal with guppies (small infringers) and whales (foreign infringers of any size that rely upon Amazon to have a presence in the U.S.). Patent holders are able to clear the clutter quickly, as the small infringers typically don't fight. Patent holders are also able to use the power of the Amazon marketplace to generate a royalty stream from foreign infringers that simply cannot afford to be removed from Amazon. And, if a foreign infringer drags you to district court through a DJ action, you will have them in your grasp as they have waived their jurisdictional defenses.

Make no mistake–the neutral patent evaluators do their best to ensure that the Amazon Marketplace is both robust and free from IP infringement. For some of my manufacturing clients, we have been successful in achieving a well-earned market exclusivity on Amazon through this process. For others who have been accused, we have been successful in defeating the claims of infringement and remaining a viable product on Amazon. Given the benefits of this procedure, it should be considered early in your enforcement and used when the right ingredients exist for success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.