Barry Greenbaum Publishes Article in Law360 on How PTAB’s Settled Expectations Framework Is Reshaping Amazon APEX Patent Disputes

Olshan Intellectual Property and Brand Management & Protection partner Barry Greenbaum published an article in Law360 (subscription required) entitled “How ‘Settled Expectations’ Affect Amazon’s Patent Program.” In the article, Barry examines how the U.S. Patent and Trademark Office’s evolving settled expectations framework may limit the availability of inter partes review for older patents and reshape strategy in Amazon Patent Evaluation Express, or APEX disputes. “APEX creates immediate pressure on sellers, PTAB review has become less certain, and district courts remain the forum where validity and infringement are ultimately decided,” Barry writes. “The key strategic question is no longer whether an APEX dispute will escalate beyond Amazon, but which forum will ultimately shape the outcome, and which party will have the advantage in determining where the dispute is litigated.” Barry explains that sellers confronting an APEX claim can no longer assume that PTAB review will provide a dependable invalidity challenge, particularly where the asserted patent is older. It also highlights declaratory judgment actions as an increasingly important avenue for litigating infringement and validity in federal court, following the Federal Circuit’s SnapRays decision on personal jurisdiction arising from an APEX proceeding. “APEX was designed to provide a fast and efficient way to resolve marketplace disputes,” Barry writes. “But it is also becoming a gateway into federal patent litigation.”