by Dennis Crouch
This is my third post about SnapPower (SnapRays) v. Lighting Defense, and the Federal Circuit’s holding that patentee’s who use Amazon’s patent enforcement process (APEX) to block infringing product sales open themselves to personal jurisdiction in the home state of the accused infringer. SnapPower v. Lighting Def. Group, 100 F.4th 1371 (Fed. Cir. 2024). In my view, the Federal Circuit has gone too far with aggressive personal jurisdiction in this case, and the patentee Lighting Defense has petitioned for en banc rehearing on the issue.
Most recently, toy-maker Lovevery has filed an amicus brief supporting en banc review. Lovevery is an American company that specializes in educational toys for babies and toddlers. According to its motion for leave to file an amicus brief, Lovevery does a substantial portion of its business through online retailers like Amazon. The company says it has a strong interest in the case because the panel’s expansive “extrajudicial enforcement” theory of personal jurisdiction could impede its ability to protect patent rights without risking being sued in distant forums.
Lovevery contends that under the panel’s rule, any time a seller reports an allegedly infringing product through APEX, they will be subject to declaratory judgment suits in the alleged infringer’s home state. For small businesses that rely on these programs, the risk and cost of being hauled into distant courts will deter many from using APEX to report knockoffs. As sellers make fewer complaints, e-commerce platforms like Amazon will struggle to identify and remove infringing listings on their own. Lovevery suggests this could be particularly problematic in markets like children’s toys, where counterfeits often fail to meet safety standards. This is an interesting argument — effectively that in some areas effective patent rights serve as a form of consumer protection.
The amicus brief also takes issue with the panel opinion’s characterization of APEX as an “automatic takedown” system that provides no process for accused sellers. Lovevery explains that the entire point of APEX was to replace Amazon’s old policy of immediate takedown upon receiving a complaint. Under APEX, accused sellers have weeks to make their case to an Amazon “judge” while their listings remain active. Only if the decider finds infringement are the listings then removed. So the panel’s suggestion that APEX deprives sellers of a fair process is unfounded according to Lovevery.
Finally, echoing what I have previously written, Lovevery argues that the panel decision contravenes Supreme Court personal jurisdiction precedent such as Walden v. Fiore. Merely directing conduct at a plaintiff known to reside in the forum state is not enough for personal jurisdiction. Rather, there must be contacts by the defendant with or directed toward the forum state itself. Here, LDG’s only contact was with Amazon in Washington state. Lovevery argues that foreseeability of injury to a Utah company cannot create jurisdiction there under Walden.