Advertising Law Blog

Amazon’s Patent Evaluation Express (APEX) has become one of the most consequential patent enforcement venues in the country. According to a recent Bloomberg Law analysis, federal lawsuits stemming from the program grew more than 200% from 2022 to 2025. For companies selling on Amazon, and for patent owners targeting them, there are three features of the APEX process they should be aware of, features that often shape the outcome long before any evaluator issues a ruling.

First, APEX looks at only one patent claim. That makes claim selection the make-or-break moment. If the selected claim doesn’t map cleanly onto the accused product, the patent owner loses, and Amazon rarely permits a second run at the same ASIN, the unique identifier Amazon assigns to each product listing. Getting the claim mapping wrong at the outset is almost always fatal.

Second, APEX doesn’t allow sellers to challenge validity, so the evaluator simply assumes the patent is valid and asks only whether the accused product is more likely than not to infringe. Unlike in federal court, where a defendant can challenge validity and a patent can only be invalidated by clear and convincing evidence, APEX offers sellers no such opportunity, which is why weak patents can still win takedowns that would never survive a validity challenge in litigation. This isn’t hypothetical: patents that prevailed in APEX have later been invalidated at the USPTO, making a parallel Inter Partes Review or ex parte reexamination an effective counter‑move for sellers facing an APEX complaint.

Third, filing a declaratory judgment (DJ) action suspends the APEX process entirely. In addition, in SnapRays v. Lighting Defense Group, 100 F.4th 1371 (Fed. Cir. 2024), the Federal Circuit held that initiating APEX constitutes purposeful direction of enforcement activity at the seller’s home forum, subjecting the patent owner to personal jurisdiction there. A timely DJ action therefore converts a streamlined Amazon proceeding into full federal litigation, complete with discovery, claim construction, and invalidity challenges. Before filing an APEX complaint, patent owners should ask themselves whether they are prepared to litigate the patent in a forum they didn’t choose.

TAKEAWAY: APEX is no longer just an Amazon takedown mechanism. It’s a strategic enforcement forum that can escalate into full federal litigation with one filing. Patent owners should pressure-test their infringement theory and their patent’s validity before filing. Accused sellers should know that DJ actions and USPTO challenges are real options in response.