#695 - What Amazon Brands Need To Know About Patents

#695 - What Amazon Brands Need To Know About Patents Speaker 2: Today we have the Amazon world's leading expert on patents. And patents is not just about protecting your products, but it could be a way for you to find new products to sell. How cool is that? Pretty cool, I think. Hello everybody and welcome to another episode of the Serious Sellers Podcast by Helium 10. I'm your host, Bradley Sutton, and this is the show that's completely BS-free, unscripted and unrehearsed organic conversation about serious strategies for serious sellers of any level in the e-commerce world. And somebody who's been helping serious sellers around the world for years, back on the show for the fourth time, Rich Goldstein in the house. How's it going? Speaker 1: It's going well, Bradley. Great to see you. Speaker 2: If you guys want to get more of his backstory, we're not going to go too much into it today, because like I said, he's been on three other times. And just check out podcast episode 77. Today we are coordinating. We are wearing our Billion Dollar Seller Summit Hawaii. I don't know what you would call this, like Hawaii-themed shirts. He's got one for his company. I've got one for Helium 10 here. We wore this and it was like an amazing race kind of thing that we did, right? Speaker 1: Yeah. We spent the day driving all around Kauai with different missions and it was a ton of fun. And yeah, both Helium 10 and my firm Goldstein Patent Law sponsored that race and so we got these team shirts as a result. It was a lot of fun and a great opportunity to see the island because a lot of times you go to these places and you go from the airport to the hotel and then you go from the hotel back to the airport, but we got to go all around and it was fun. Speaker 2: I've never missed a billion-dollar seller summit. The thing that Kevin and Mark set up, always different every year, and it's the best in the business as far as being able to see the sites and do adventure and not just go there for a conference. So it's really, really good times there. Now, speaking of travel to exotic places, People wonder sometimes about how I can afford to do all the travel I do because it's not all Helium 10 related. I don't know if it's obvious or not, but trust me guys, Helium 10 is not paying for me to do business class and premium economy or any of that stuff, but half the time now, I am in business class and I kind of owe everything to Rich. About five years ago, I was into like points and stuff, but most of it was accumulated when I was like a kid. I had hundreds of thousands of points because my parents took me to travel around and so I had like so many points just in Korean Air, which I couldn't really use anywhere else. But then Rich was like, uh, telling me about the United program and I just started going to it. I was like, you know what? United is pretty cool. So I did like a status match challenge. I think it was maybe with a founder's card and I got up to a certain level, but then I just became obsessed with it because of all, I could see all the things that Rich was doing and getting upgraded with plus points and, and all this other stuff and giving friends points and stuff when you're as a, and I was just like, United is such an amazing program. And now for like, I think it's been like three or four years now I've been 1k. Status and that just oh my goodness, the benefits guys that brings is not just you know, I'm doing a trip next week. A crazy one. It's not all united but I'm going to Newark, your airport, business class or first class, whatever it's called, the domestic, and then to Dubai, which is you want business class for a 14-hour flight, business class. And then I'm doing a first class on Emirates from Dubai to the Maldives and then first class on Singapore Airlines from Maldives to Indonesia. And this is going to be my first thing where it's all, but again, if I want to tie back all of my travel hacking and success, It's to this gentleman right here, Rich, who has been a 1K member for I don't know how many years. Speaker 1: Yeah, I don't even know, but you make me proud, Bradley. You've taken that and you've taken it so much further than I could imagine. Yes, a little tear in my eye over here. Speaker 2: I love it. Are you still traveling as much as you used to? Speaker 1: Not as much as I used to. I've been paring it back as much as I can to spend as much time as I can at home, of course, and also there's just a lot going on in my firm. I need to be in the office as much as possible. I have really been optimizing my travel to the important trips, but it's still way more than most. Speaker 2: Yeah, yeah. And guys, so if you do travel a lot, I know I used to be the person who, hey, let me just find the cheapest economy and that kind of stuff. But as I have in my old age here, you understand how important it is to be relaxed and arrive well rested. And so start instead of just looking at the what's the cheapest, try to stay with one airline family. You know, I would say, you know, you know, like United is Star Alliance, you know, which includes Singapore Airlines and, and like a million other airlines. And then there's One World out there. And then there's Sky Team, but try and stick to it, because then you get the points you put your credit card, guys, your Amazon advertising credit card, so you can get even more points. And then start treating yourself as you travel. If you start traveling more, it's a game changer when you can take business class or first class or something on a five plus hour flight and then instead of taking 24 to 48 hours to be like, let me just get over this flight, you know, like you, you just arrive refreshing, you're ready to go and stuff. So I think Richard agree with me there. It's, it's something that, you know, like I'm all about saving money too. That's how I was raised. Asian mom definitely raised me that way, but, but you got to be able to treat yourself in certain things. Speaker 1: Well, I'll tell you it's for me, it's, it's kind of like this. It's like, if I'm sitting in coach, then I'm probably saying to myself, did I really need to take this trip? I, this has taken a really long time. Okay this is like and i'm kind of hating life but if i'm in business class i'm like. I could sit here for the next five hours it's no big deal i can sit here i do my thing it's like not you know it's. Nothing's really bothering me. It is totally a game changer. It changes it from I could do this no problem to this sucks. Everything you can do to either optimize your chances of getting upgraded or to even buy into business class makes a difference. For me, one of the biggest factors is that I end up buying the business class, first class ticket But because I buy it six months in advance. If you look at my United app, I've got probably 40 or 50 flights booked at this point. I've got flights booked until next April going to a billion dollars. Speaker 2: I don't even know what I'm doing next week sometimes. That's amazing. Speaker 1: And sometimes it needs to change. But by and large, if you book ahead of time, you can book business class at the cost that other people are paying last minute for economy. Speaker 2: Yeah. Okay, that's good to know. There's a little mini travel hack. I need to start doing it earlier. As a matter of fact, I did do a trip to Tahiti. I've never been to Tahiti, and that's in December. Usually, I never plan my stuff out, but I did that a couple months ago. It was very cheap, so that's a very accurate statement. Okay, let's get it. You're top in travel hacking and traveling, but you're also the top in In the Amazon world, we're like patent, you know, top patent attorney in the space. And so it's been a couple years since we've talked about this subject. And I'm just curious as to, first of all, is there anything new that's happening? Like, because of AI, everybody wants to put AI in every conversation. But I'm curious, like, has the influx of AI affected the number positively or negatively of like people who are getting patents or unique products or pretty much no impact? Speaker 1: I don't think it's had a direct impact or significant impact on people that are getting patents. Probably one of the biggest impacts of AI in this realm is Amazon using AI to sort out IP complaints. When you complain about your design patent infringement, It used to be that someone at Seller Central is going to look at your design patent, look at the ASINs that you're accusing of infringement and making a determination. Now granted, they're not that knowledgeable, they're not that skilled, but at least a human is doing it. But these days, it's pretty much their AI algorithm that's deciding whether there's infringement or not. And so how good is it not very good and so and probably the best way to describe it is that like. If things are a little bit outside of the box then the AI is rejecting the claim and. So it's like, as an example of that, sometimes you'll see that there's copyright infringement of something that includes multiple articles. Like maybe there's five or six different designs within the same ASIN. And let's say someone's copying four of those. That's still copyright infringement, but the AI algorithm doesn't know what to do about that. So that's one example of where the algorithm is failing. And so I think probably that's the biggest impact on sellers is that, and I imagine it goes beyond IP too, in that Amazon is using AI more and more to deal with kind of the millions of pieces of correspondence, complaints, inquiries, et cetera. Amazon has always been about what they perceive to be efficiency. When it comes to AI, this is the thing that I always talked about is that sometimes Amazon will decide, when they're looking at an IP infringement claim, that it's way better to err on the side of caution with regard to the seller. So in other words, it's like, if we're not quite sure that there's infringement, we don't shut them down. And so sometimes they'll go that way. But sometimes they'll say it's more efficient to err on the side of caution with regard to the IP holder. So if there's even a chance of infringement, they'll shut down the ASIN. So like, they know that they're going to be wrong a lot of the time. But I think they just figure like, well, what's more? What's a better situation? Which should we be wrong about? And what's going to result in kind of less consequences for us for being wrong. And so, and I think AI has just magnified that a bit. Speaker 2: Sellers have lost thousands of dollars by not knowing that they were hijacked perhaps on their Amazon listing or maybe somebody changed their main image or Amazon changed their shipping dimensions so they had to pay extra money every order. Helium 10 can actually send you a text message or email if any of these things or other critical events happen to your Amazon account. For more information, go to h10.me forward slash alerts. What's the most economical way – and economically, it still could be expensive. It's still picking the best – just like you said, there's an economical way to pay for business class. There's an economical way to do what I'm about to ask. To make sure I lessen the chance that I'm infringing on somebody's patent, if I've got a product idea and it's not like there's 40 people who already have it, there's 40 people who are all selling the same thing for five years, probably there's no patent on it because the AI or somebody would have taken action. But I got somewhat of a unique idea. Maybe I only see one. That's a red flag for me right now. Only one person has it. But how do I go about, you know, I can check for trademark, just go to USPTO and it's a free thing. Is there something like that for patents, like a free search or should I always be utilizing like a professional like yourself to actually do a real search to make sure I'm not infringing on something? Speaker 1: Yeah, well, here's the thing. It's difficult to figure out if you're actually infringing on something because there's lots of different ways you can infringe on a certain product. In other words, like People think that, oh, they went out and they patented their product. You don't patent a product, you patent something about the product. Like you might patent the, like say it's a toy, you might patent kind of the way the toy operates. You might patent the safety seal on the battery compartment that keeps kids from getting into that. You might patent the overall look of the toy, which is what a design patent is for. When someone presents the question of, hey, I've got this product, Am I infringing any type of IP that's related to this product? That's a hard question to answer because we don't know, first of all, what about the product might be protected. Speaker 2: First of all, it's not just the design, it's the function also which people can patent. Speaker 1: Utility patents could be for different types of functionality of the product and it's more on a conceptual level. It could be products that look quite different that still infringe the utility patent. So the appearance again is the design but with regard to the functionality, yeah, there's a wide variety of utility patents that can be infringed. So typically, where you want to start is an inkling of what is the innovation? What is the part of this product that makes it unique? And that often comes from knowing the market and so you know other kind of let's say Dock lines right or in other words for boating like you know like the industry and so when you see one you say oh like that one has like a. I kind of like a little safety collar there that prevents someone from getting pinched or whatever like in other words you you have an inkling of what makes this product unique. Now you've got a direction to start to look for patents that you could potentially be in conflict for so. You have to have a starting place to do that type of research. There isn't a good way though for a layperson to figure out infringement and there's a bunch of reasons for that. One is, again, we're talking about utility patents. It's rather complicated even for attorneys to determine where the infringement is. It's a matter of words. It's part of the patent claims and how the patent claims are written. If we're talking about a design patent, it's a bit more straightforward because it's about looking at the pictures. So if you're able to find the design patent for their product, that can give you a good idea of whether there's room perhaps for you to do something similar but different. And the place to look is Google Patents. So Google has a patent search website and it's patents, p-a-t-e-n-t-s dot google dot com. So that's a place where you can look for existing utility and design patents. But it takes some kind of skill or a bit of knack to really work your way around and find the most relevant things. And, but what I wouldn't say is if you do your own research that you could truly feel safe that, well, if I didn't find it, it doesn't exist. You might want to have a professional search done as well. Speaker 2: If I'm selling coffin shelves and I'm only selling like, you know, 10 units a day, selling, you know, maybe 50, a hundred grand of this a year. And there's already people who have, you know, other coffin shelves and there's nothing unique about it. I think it's pretty safe to assume that at that level, Patent might not be that, you know, like, oh, all of a sudden, I can't stop selling. I can't sell this product that I sell five units a day, 10 units a day. It's not the end of my world. There's no exact line or number, you know, that is, you know, something set in stone. But what would you say, like, you know, due to the cost of how much a patent, and that's part of my question, too. I know there's a lot of, you know, probably could range in thousands of dollars difference, but rule of thumb, if we're talking rules of thumb. Speaker 1: Yeah. Speaker 2: My projected sales, when should I be considering, hey, I should probably look into my own design or utility patent here because this is a game-changing idea or this is something that I think is going to get copied or this is something that I want to have a moat over for as long as I can and want to maximize the sale. Where does it make sense for me as an Amazon seller to be looking into that? Speaker 1: Here's the thing. First of all, the when, the absolute last chance to apply for a patent is one year after it's public. That's one way of looking at when. If it's a product that you've been selling for some time, it may be too late to ever apply for a patent. By the way, just an important little note there about that is A lot of times people know about this one year rule and they use up all of that available time. But take note, if you do this, if you launch your product and you're thinking, hey, I'm going to give it a few months to see how things are doing. Keep in mind that on that Amazon listing page, there is often a field that says date first available. That date could be totally wrong because often that date gets set when you create your calendar listing well before you actually launch the product. You create the listing. It's not public. But then you go order your inventory. When the inventory gets to the warehouse, you make your listing live and that's truly when it launched. That's truly when that page became public. The problem people encounter is if it takes time for them to get the product to launch, that field can be locked and it can be locked in a date that's not true. It can be locked at the date when you created the catalog listing. Then when you apply for a patent, patent office examiner is going to see, they're going to find that page and they're going to say, well, you know, you applied for this in June of this year, but it looks like you launched in January of the year before. That's, you know, that's 17 months. That's too long. And you're like, wait, no, no, no, I didn't launch until July. I've been in a situation where I've been able to overcome that, but it's a big problem that people don't realize and they think they could change that field by uploading a flat file, but that field is locked. You can't change it. So it's something that's very important to keep in mind is that if you see that your listing has a date first available, that's well before your actual launch date, you need to keep that in mind or you should keep that in mind for when you file your design patent application. Speaker 2: What about projected sales of where it makes sense? Speaker 1: Yeah, I was going to say that wasn't the answer to the question you asked, but I wanted to throw that in there too. Now in terms of projected sales, here's the thing is if you're trying to second guess whether someone else in the same field were known as really doing significant numbers, if someone else might have done a patent, The assumption here is that everyone's rational, right? And they're not. There are lots of people that do patents when it's really a tiny market and they probably shouldn't have. And then there are people that don't bother when they've got a really big product that they're launching. Even they've launched other products that have done six, seven figures and still they're just not in on the patent game. So I don't know if we can rely on the fact that other people are going to be rational about it and count on that. But I think in general is if you're launching products that you think are about 100K each, let's say 100K a year, And like, let's say one out of 10 products ends up being 500k, you know, million dollar product. You do that 10 times, you spend, you know, let's say $50,000 on doing 10 design patent applications. In the long run, you'll win because of that million-dollar product and some of those 100K a year products. You have someone that comes in and you go from selling $100,000 a year worth of product to $50,000 a year worth of product. If you could take them down and get back that 50K, It's worth the $5,000 you spent on that design application. So in the long run, I would say it's worth it for 100K-ish type products. But most people aren't launching 10 products. They're launching one, right? And so it's kind of hard to apply that thinking. You're using the resources you have from having a $100,000 a year Amazon business and then it could be painful to spend $5,000 on a design patent. If you're thinking about it as a long-term game, then something significant, something that at least is in the six figures, you should be considering filing design patents on. Speaker 2: If I'm – this is a question that a lot of people ask and we've talked about it before on the podcast, but two follow-up questions. If I'm manufacturing in China, at what point should I consider doing a Chinese patent, if at all, or is it useless? And then if I'm selling in Europe, should I consider some kind of European patent as well? Speaker 1: Yeah, okay. Well, so with regard to China, here's the thing. So if you're selling in the US, but you're manufacturing in China, there isn't much reason to do a Chinese patent. So the U.S. patent prevents someone from making, using or selling it in the U.S. And so the only reason you'd want a Chinese patent is if you've got a big market in China. Like if you think that you're going to sell products in China and you want to stop people from selling them there, then you'd want a Chinese patent. But you don't need a Chinese patent to stop a manufacturer from selling products here in the U.S. And that's interesting. Speaker 2: So that doesn't that doesn't help too much. That's obviously what you just said is a big worry. Oh, you know, like how do I keep factories from selling my product to everybody else? What Chinese patent doesn't per se. Speaker 1: Completely protect them from right and yeah exactly if you had well if you had a Chinese patent you could effectively prevent them from selling your product to someone who's going to sell it in Europe. Right so making it in China selling it to Europe but if the products are all really destined for the US then the US patent can do the job. And so that's the point. And so the second part of your question about a patent in Europe is, yeah, if European marketplace is an important or is going to be an important component of where your sales are coming from, then it would be important to have a patent in Europe too. One thing to keep in mind about that, well, actually any of them, Chinese patents, European patents is that you have a little bit of a time gap in order to file those further applications. So let's say you file in the U.S., you file a utility patent application in the U.S., you've got a year to then start the foreign filing process. So you can wait to see if you're getting traction in the U.S. before you file in Europe or file in other places. If it's a design patent, you've got six months, not a year, but still, you don't have to do it all immediately at once. You have a little bit of time there to gain some traction and get a feel for whether it's going to be worth doing those other countries. Speaker 2: You've talked in the past, I'm just curious what's going on in 2025 about how Patents is not just something that can protect you, but it's also a form of product research and opportunity like looking at patents that expire or things like that. Have you heard of anybody doing that in the last year or so? You don't have to mention names or actual product types. I'm just curious if that's something that people have been doing. Speaker 1: Yes, I do and it's funny too because that's part of the answer to your first question that I kind of forgot to give. You were saying when you're putting out products, are there any tricks to avoiding infringing? Is there any way to find products that are less likely to infringe? This is an answer to that too. If you find a product that's been out there on the market for more than 20 years, then if there was a patent for it, then that patent would have already expired and expired patents are fair game. One way to find products that are less likely to be a problem is to look for old products. Look for products that have been out there for 25 years, let's say, or look for designs that have been out there for that long. Like a certain design for your product, like a certain configuration, there are different variations out there and maybe there's some that are kind of like the old style, the old variation and those then are a safer bet in terms of the possibility of infringement. Now taking that to the next level is what you're talking about is I've showed people in the past how to search for expired United States patents because then that's a great way to know that it's open for you to do that same thing. Because again, once a patent expires, it's fair game for anyone to do exactly what's shown in the patent. And, um. Um, as a matter of fact, um, you say there hasn't been any development I showed, I think it was at, um, maybe, um, BDS, um, BDSS, um, two, um, or maybe BDSS four, I showed, um, at, you know, for Kevin Kim's Kings group in complete detail, how to search for expired patents. And I gave a couple of examples, including, um, a dog bed, um, that I saw from an old, um, I'm an old patent and I kind of laid out, made a case for how that could be a good product idea. I've seen lots of dog beds configured like that and I don't know if it came from that talk. There were a lot of great sellers in that room and someone might have said, yeah, that actually is pretty good. But yeah, I think people are doing it. They're looking for expired patents and using that as an invitation to do that same thing. And here's the secret though, is that there are a lot more things patented than have ever made it to market. So you'll find some really cool ideas. You'll find a whole lot of kooky ideas. You have to weed through the kooky ideas. But you'll find some great ideas. The people that did it in order to get that patent, they had to fully explain the product. They had to fully illustrate the design, explain in enough detail so that someone could make the product from the description without too much experimentation and work on their part. So you had someone who thought it was a great idea. They spent a lot of time and money getting that explained and patented. Um, and now you find it, you like it, you've got essentially the blueprint to make your own product like that. Speaker 2: Interesting. Interesting. So guys, you know, patents is not just something about security, you know, be thinking about it in the context of it could give you actual product ideas. Now, now going back to the, what, you know, people traditionally think about, um, any horror stories again, Don't need to mention names or products, but of where somebody came to you and they got delisted from Amazon and what their sales was, what it went down to, and that you weren't able to help them because they were infringing on a patent because they didn't do their homework. I want to put a healthy fear into people. We don't want to scare people away from Amazon, but just to help people understand the Let's talk about the seriousness of this topic of what could potentially happen to you if you didn't do your homework. Speaker 1: I've got some suggestions there too. First of all, way too many times that someone has $50,000 in inventory, $75,000 in inventory, they get shut down and they can't get back up. They can't get back up on Amazon. They have to get rid of their inventory. Sometimes there are ways to sell that inventory on other channels. Sometimes the inventory hasn't gotten into the U.S. and so it can get redirected somewhere else where it could be sold because a U.S. patent prevents someone from making, using and selling it in the U.S. But it doesn't mean you can't sell it in Canada, for example. So like there are things that people do to deal with those situations. But what I would say is how you deal with that situation of being shut down for IP infringement is 100% based on whether you're actually infringing or not. Because there's a lot of BS claims that are made, a lot of BS infringement claims, even ones that Amazon buys into. So they'll initially shut you down. The most important thing is to find the answer to, are you really infringing? And don't listen to people that don't really know because there are people that say, well, yeah, you're not infringing. Yours is more rounded than theirs. They don't know what they're talking about. And people will say, you're not infringing because you've got these extra features that they don't have in their patent. They don't know what they're talking about. You don't get out of infringement by adding extra things. It's just kind of textbook that if you have the infringing part, you're infringing, even if you add other things to it. So essentially, don't listen to people that don't know. But the most important thing is to find out, are you really infringing? Because then you can figure out your options. If you're not infringing, then you want to call BS on this infringement claim in the best way possible. But if you are infringing, then you want to put your tail between your legs and figure out a path forward. Sometimes that path might be reaching out to the patent owner and getting a licensing agreement where you're paying a royalty to sell through your inventory, but that's far better than having to just discard your inventory. Speaker 2: What is a positive situation that you can refer to where. There was somebody infringing on somebody who did get a patent for their product and they were really into their sales, but then they were able to lawfully report it to Amazon and got that person kicked off and then their sales went back up. We don't want to just scare people, but there's a positive to this too. Speaker 1: Yeah, absolutely. And that happens often when people apply for the patent before they launch, which is the best time to do it. And so then At some later point, the market develops for them, maybe people start copying them because they see that the product is doing pretty well, and then the patent issues, the patent is granted. And I have one client who put it exactly like this. He said, and then on that one magical day, we shut down 40 of our competitors. Right. Speaker 2: Wow. Speaker 1: So, so yeah, sometimes it's just, you know, as we'd say in New York, it's a beautiful thing. You know, sometimes you just, you, you, when you get the patent, you know, You're able to directly shut down all of these other copycats and it's glorious. Speaker 2: If people want to reach out to you to get more questions answered about this topic or potentially even to look into some issues that they might have, how can they find you on the interwebs out there? Speaker 1: First of all, they just want to learn more about patents or find out about us. Then you can go to GoldsteinPatentLaw.com, our website. You can set up an appointment to talk with us and see if it's a match to work together. Through that, and I'll just also say if you want to learn more about patents, you could check out the book I wrote for the American Bar Association that explains in plain English how patents work. It's called The ABA Consumer Guide to Obtaining a Patent. Speaker 2: Love it. Love it. All right, Rich. Thank you so much for coming on. Let me know if you have any more points that are going to be expiring next year. I know I've tried to reach out to you, but I think you have so many points you never need it when mine are going to expire. I appreciate the exchange. Speaker 1: Bradley, I have a few for you. If you're running low, let me know and we'll see what we can do. Speaker 2: I appreciate it. Thanks, Rich, and we'll be reaching out to you to come back on and see what's new in the world of patents soon. Speaker 1: Awesome. Thanks, Bradley.