What can we do if a manufacturer in China copied our US patented product and constantly sell their copies to US buyers through international E commerce platform? This Chinese company does not have a physical presence in the US. All transactions are captured through their website,payment method being used is PayPal, and they ship directly to buyers in the US via international EMS. As I understand, Patents are territorial rights. But do we have the legal right to go against them in this case? Since their copies are now flowing into the US market without the business entity sets foot in the US.
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They are offering in the US which is a patent infringement.– user18033Commented Aug 13, 2019 at 4:53
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2 Answers
Some international e-commerce platforms have an Intellectual property platform for registering complaints. For example, see Alibaba's Aliprotect (I think now called IPP). One can register infringement complaints (for any form of IP) against an allegedly infringing product being sold on their platform. However, I suspect that trademarks and copyright may be easier for the platform to evaluate as compared to patent infringement cases - given the nature of complexity in evaluating patent infringement. https://ipp.alibabagroup.com/complaint/onlineForm/online.htm https://www.wipo.int/wipo_magazine/en/2018/si/article_0006.html
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Paypal also has a complaint resource called the Infringement Report Process link. From their website: "Our Infringement Report (IR) allows rights owners to identify potentially infringing activity taking place in association with a PayPal account. This process can be used to report infringement on websites or other forums offering goods or services through PayPal." Commented Dec 4, 2019 at 19:34
This may be useful to have your answer.1
The easiest way out, in the light of 35 USC Section 271(a), is holding importer responsible for infringement. 2
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1The question mentioned that the delivery from China to end user is via the post with no importer.– George White ♦Commented Aug 12, 2019 at 17:55
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My humble submission is, the moot point to be considered is 'sell their copies to US buyers'. So, definitely one in US is involved in the process as 'procurer'. I am blank about US law regarding items obtained (purchased and brought into the USA) through e-commerce. But for my country (India), my own experience is, the act is treated as import and every such procurement goes through excise vetting. It is my assumption that, US will not keep eyes closed to items brought into US through e-commerce and EMS. Commented Aug 14, 2019 at 2:49
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In the U.S. each unit will also be considered an import but policing the problem is very difficult due to the distributed nature of the single items to individual users. If it was coming in by the container load to a specific importer it would be much easier to enforce any order from the ITC.– George White ♦Commented Aug 14, 2019 at 4:38