Is Amazon the next big target for patent disputes in Europe?

Patent lawsuits are nothing new for Amazon. In 2009, IBM sued the online retailer for alleged infringement of an e-commerce patent. In 2010, Discovery sued for infringement of a patent by Amazon’s Kindle e-reader and, in 2019, a developer of voice software took legal action against Amazon’s virtual voice assistant, Alexa. But these cases were mostly brought before US, rather than European, patent courts.

Cases in isolation

In Europe, the company has faced only isolated cases for many years. Only occasionally have non-practising entities sued Amazon here. For example, JUVE Patent is aware of lawsuits filed with German courts in 2019, in which the NPE Lux Lighting accused the US company of infringing mobile communications patents. Another NPE, Datascape, sued over audio streaming patents.

Patent holders were also quick to target the sale of allegedly patent-infringing products via Amazon’s sales platform. But insiders explain that the legal situation regarding the liability of platform operators in Germany and other EU countries is complicated.

As such, until now these actions have always remained isolated cases. In 2019, for example, JUVE Patent reported on Varta’s lawsuit at the Regional Court of Braunschweig to stop the sale of Samsung batteries via various retailers.

Amazon in focus

However, for two years now, the number of parties filing lawsuits against Amazon in Europe has increased. In 2022, DivX filed a suit against Amazon Prime at the Munich Regional Court over video streaming patents. Then, in November 2023, Nokia launched a global series of lawsuits against the retailer.

The Finnish mobile communications giant accused Amazon of the unauthorised use of Nokia’s video-related technologies in its services and devices. Nokia’s patents protect technologies for video compression, content delivery, content recommendation and aspects relating to hardware. In particular, the lawsuits targeted the Amazon Prime Video service and Amazon’s streaming devices.

In addition to courts in the US and India, Nokia filed lawsuits in Germany, the UK, and at the UPC (case ID: ACT_584119/2023). One case which Nokia has filed with the assistance of Arnold Ruess is currently pending at the UPC, while a Hogan Lovells team led by Munich partners Benjamin Schröer and Steffen Steininger is defending Amazon.

Attacks on multiple fronts

Amazon is also facing two other lawsuits at the UPC. Air up, a Munich-based manufacturer of innovative drinking bottles mainly used by children and teenagers, filed a preliminary injunction against Amazon to prevent the distribution of imitation products from China via the platform (case ID: ACT_596653/2023).

Bardehle Pagenberg partner Jan Bösing handled the PI application for the German company, while a DLA Piper team led by Constanze Krenz defended Amazon.

Seoul Semiconductor has also recently sought to prevent the sale of allegedly infringing LEDs via the Amazon platform. A Linklaters team led by German partners Julia Schönbohm and Bolgo Elgen filed a lawsuit on behalf of the company at the Düsseldorf local division for infringing two patents (case ID: ACT_10738/2024).

Previously, the Korean company has successfully obtained injunctions against several LED manufacturers in national courts. The aim now is to prevent the sale of such products centrally for Europe via industry leader Amazon’s platform. Seoul Semiconductor is therefore not suing Amazon for direct patent infringement, but for liability if the US company does not stop the sale of patent-infringing products. Amazon has not yet decided whether its regular advisors Hogan Lovells or DLA Piper, or still another law firm, will conduct the UPC proceedings.

UPC guarantees strong leverage

That patent holders are increasingly filing patent suits against Amazon in Europe is down to at least two reasons. On the one hand, as in the Nokia and DivX cases, parties are targeting Amazon’s own products such as Amazon Prime. In these cases, Amazon itself is accused of infringing patents.

On the other hand, plaintiffs are seeking to stop the sale of third-party products that infringe patents. In such cases, Amazon does not infringe the patents itself, but is said to be liable for the distribution.

Julia Schönbohm

Legally, this is still an unresolved issue in many European countries and at the UPC. At the latter, case law in general remains in the early stages; its development is characterised by different legal traditions.

Currently, a great deal seems possible at the UPC regarding platform liability. The UPC also offers plaintiffs greater leverage over patent infringers due to the possibility of a Europe-wide injunction.

Speaking to JUVE Patent, Linklaters partner Julia Schönbohm says, “We are observing that the German courts are taking an increasingly strict view of platforms’ liability for the sale of products that infringe intellectual property rights. The case law concerns trademark law in particular, there is hardly anything on patent law.”

She adds, “But Amazon is no different from other large retailers. With the UPC, plaintiffs have greater leverage with the Europe-wide injunction. In addition, the short duration of proceedings compared to national courts is a motivating factor in filing suits at the UPC.” Schönbohm recently filed a lawsuit at the UPC on behalf of Seoul Semiconductor.

As an industry leader, Amazon is therefore often the test case. Whatever the UPC decides in such proceedings will also be binding for other sales platforms in the future.

Increasing pressure on infringers

However, parties also use UPC lawsuits to directly target the manufacturers of copycat products. Jan Bösing, lead partner at Bardehle Pagenberg for Air up, says, “Urgent applications against providers such as Amazon can also be attractive if you want to stop the distribution of patent-infringing products quickly, but you can’t serve the defendants quickly due to complicated and costly delivery, for example in the case of Chinese companies.”

Jan Bösing

Air up and Amazon settled their dispute a few months later with no hearing, most likely by means of a settlement. The only official news is that Air up has withdrawn its PI application to the UPC.

Bösing says, “Stopping the distribution of patent-infringing products by dominant platforms such as Amazon can also have a signal effect for other platforms. If an industry leader stops the distribution of such products, patent holders will probably find it easier to reach agreements with other platforms.”

According to Bösing, it also makes a strong impression on patent infringers when Amazon and other leaders no longer distribute their products. In addition to the PI application against Amazon, Air up therefore also filed a PI with the UPC against the Chinese manufacturer of the copycat product.

When asked by JUVE Patent, Amazon did not comment on the UPC cases or the liability of platforms in patent disputes.

Little known is that Nokia also used a lawsuit against Amazon in the dispute with Oppo. The two companies recently settled. Previously, Nokia had sued Amazon in a German court to stop the distribution of Oppo mobile devices. Oppo had withdrawn from the German market after the Munich Regional Court banned the sale of Oppo devices in Germany. Sales via Amazon apparently continued.

Huawei and Amazon settle

Previously, such patent cases have rarely reached the public eye. This is now also changing with the UPC’s publicly accessible register. In addition, more and more plaintiffs are seeking to increase the pressure by publicly announcing lawsuits against the US giant.

Huawei launched one of the most extensive lawsuits in 2022 at the Düsseldorf and Munich regional courts. Shortly before Christmas 2023, Munich Regional Court ruled that two European subsidiaries of Amazon and Eero – a manufacturer of wifi routers also owned by Amazon – had infringed EP 3 334 112. The company may no longer sell Wifi-6-capable products in Germany.

In these proceedings, a Bird & Bird team led by Düsseldorf partner Christian Harmsen represented Huawei, together with a patent attorney team from Braun-Dullaeus Pannen Emmerling. Amazon relied on Hogan Lovells.

The judgment was a hard blow against Amazon in Germany. However, Huawei also avoided suing at the UPC in this dispute. In the meantime, both companies ended the dispute with a settlement. Amazon has a reputation for not prolonging proceedings unnecessarily.