If you are a patent attorney with clients selling on Amazon, you’ve probably heard about APEX—Amazon’s Patent Evaluation eXpress program. On paper, it sounds almost too good to be true: resolve patent disputes in 30 days for just $4,000 per party. Compare that to traditional patent litigation, which can drag on for years and cost well over a million dollars, and APEX seems like a no-brainer.
But here’s the catch: a recent Federal Circuit decision has transformed APEX from a simple enforcement tool into a potential jurisdictional landmine. Before you recommend APEX to your client, you need to understand the SnapPower trap.
What Is APEX?
APEX is Amazon’s private dispute resolution program for utility patent infringement on its marketplace. Launched in April 2022 after a three-year pilot program, APEX offers patent owners a streamlined way to remove allegedly infringing products from Amazon without going to federal court.
Here’s how it works:
Step 1: The Patent Owner Files a Request
Patent owners enrolled in Amazon Brand Registry can submit an APEX request identifying up to 20 allegedly infringing product listings by their Amazon Standard Identification Numbers (ASINs). You need to identify which patent claim is infringed and provide supporting documentation.
Step 2: Amazon Reviews the Request
Amazon reviews the submission and decides whether the patent is suitable for APEX. Patents involving “extremely technical” subject matter—think complex software algorithms or intricate hardware internals—may be rejected. Unfortunately, Amazon doesn’t publish clear guidance on what makes a patent too technical, and there’s no appeal process if your request gets rejected.
Step 3: The Accused Seller Gets Notified
If Amazon approves your request, they notify the accused seller, who has three weeks to respond. The seller has three options:
- Decline to participate – Amazon removes the disputed listings automatically, and the patent owner does not have to pay the $4,000 deposit
- Agree to participate – Both parties pay $4,000 to a neutral evaluator (more on this below)
- File a federal lawsuit for declaratory judgment – And this is where the jurisdictional trap springs
Step 4: The Neutral Evaluation
If the seller agrees to participate, Amazon appoints a neutral evaluator—a licensed patent attorney with relevant expertise. Both parties submit their $4,000 deposits directly to the evaluator. The prevailing party gets their money back, so the winner’s only cost is attorney fees for preparing the briefs.
The briefing schedule moves fast:
- Patent owner submits initial brief: 21 days
- Accused seller responds: 14 days
- Patent owner files optional reply: 7 days
- Evaluator issues decision: 14 days after the last submission
Page limits are strict. Patent owners get 20 pages total across all submissions. Accused sellers get 15 pages for their response. Claim charts don’t count against page limits, but everything else does.
Step 5: The Decision
The evaluator decides whether the patent owner is “likely to prove infringement.” That’s it. No damages. No attorneys’ fees. Just a yes-or-no answer on infringement.
If the patent owner wins, Amazon removes the infringing listings within 10 business days. Even better, the patent owner can use that APEX case number to remove similar infringing products from other sellers without filing new APEX proceedings—assuming the infringement is “easily observable” by Amazon.
If the seller wins, the listings stay up, and that’s the end of the APEX proceeding.
The SnapPower Trap: How APEX Can Land You in the Wrong Court
Now we get to the problem that emerged in 2024.
The SnapPower Case
In May 2022, Lighting Defense Group (LDG), a Delaware-based company with its principal place of business in Arizona, initiated an APEX proceeding against SnapPower, a Utah-based company. LDG alleged that SnapPower’s electrical outlet covers with integrated lighting technology infringed LDG’s patent.
SnapPower didn’t participate in APEX. Instead, it filed a lawsuit for declaratory judgment of non-infringement. But here’s the twist: SnapPower didn’t file in Delaware where LDG is located. They filed in Utah—SnapPower’s home state.
LDG moved to dismiss for lack of personal jurisdiction. The district court agreed with LDG and dismissed the case. After all, LDG had never done business in Utah, never owned property there, never had offices or employees there. They had simply filed an APEX complaint through Amazon’s system.
SnapPower appealed to the Federal Circuit.
The Federal Circuit’s Decision
In May 2024, the Federal Circuit reversed the district court’s decision. The court held that by initiating APEX, LDG had “purposefully directed extra-judicial patent enforcement activities” at SnapPower in Utah, thereby establishing specific personal jurisdiction.
The court’s reasoning was straightforward:
First, LDG intentionally submitted the APEX Agreement to Amazon, knowing that Amazon would notify SnapPower and that the notification would affect SnapPower’s business in Utah.
Second, APEX is different from a cease-and-desist letter. You can ignore a cease-and-desist letter. But if SnapPower took no action in response to the APEX notice, Amazon would automatically remove its product listings within three weeks. Those automatic consequences affect sales and activities in Utah.
Third, it’s not unfair or unreasonable to subject LDG to jurisdiction in Utah. LDG knew—or should have known—that using APEX would have these consequences.
The Supreme Court denied certiorari in April 2025, leaving the Federal Circuit’s ruling in place.
What This Means for Patent Owners
Let me paint a picture of how this plays out in practice:
Imagine you’re a patent attorney in Florida. Your client has a utility patent and discovers a seller on Amazon infringing it. The seller is based in California—specifically, in the Northern District of California, a jurisdiction known for being tough on patent owners and quick to dismiss weak patent cases.
You file an APEX proceeding. The seller, who has experienced counsel and deep pockets, immediately files a declaratory judgment action in the Northern District of California. Now your Florida client is defending a patent case in California, possibly in front of a jury that’s skeptical of patent owners, with judges who are known for granting early motions to dismiss.
This is the opposite of what you wanted. You chose APEX because you wanted a quick, inexpensive resolution. Instead, you’ve triggered litigation in a jurisdiction you would have avoided at all costs.
Strategic Considerations: When Should You Use APEX?
Despite the SnapPower risk, APEX isn’t dead. It’s just more complicated. Here’s how to think about whether APEX is right for your client’s case.
APEX Works Well For:
1. Straightforward Visual Infringement Cases
If the infringement is obvious from looking at product photos—think design similarities that are easy to spot—APEX can be ideal. The page limits and no-discovery constraints actually work in your favor because you don’t need extensive technical explanation.
2. Cases Against Small, Unsophisticated, or Foreign Sellers
Individual sellers and small businesses are less likely to have experienced patent counsel on retainer. They’re more likely to either decline to participate (giving you an automatic win) or participate in the APEX process rather than filing a preemptive federal lawsuit.
3. Patents That Are Strong on Infringement but Potentially Vulnerable on Validity
Here’s an interesting strategic angle: because accused sellers generally can’t challenge validity in APEX (except in narrow circumstances involving prior court findings or specific prior art), APEX can be attractive if your patent might not survive an invalidity challenge but you have a strong infringement case.
The flip side? This advantage is temporary. APEX decisions carry no preclusive effect in federal court. A seller who loses in APEX can still file a federal lawsuit raising all the invalidity defenses that weren’t available in APEX. So you might win in APEX but still face federal litigation afterward.
4. Situations Where You’re Willing to Accept Jurisdiction in the Seller’s Home State
If your client has litigation counsel in the seller’s jurisdiction, or if the seller’s home jurisdiction isn’t particularly patent-unfriendly, the SnapPower risk may be manageable.
APEX Probably Isn’t Right For:
1. Complex Technical Cases
If explaining infringement requires detailed technical analysis, extensive claim construction arguments, or deep dives into how internal components work, you’ll struggle with APEX’s page limits. Worse, Amazon might reject the case as “extremely technical” before you even get started.
2. Cases Against Well-Capitalized Sellers in Patent-Unfriendly Jurisdictions
A sophisticated seller with good counsel in a patent-unfriendly jurisdiction (Northern District of California, Eastern District of Texas post-TC Heartland, certain Delaware judges) is likely to file a preemptive declaratory judgment action. You’ll end up in federal court anyway—just not in a court of your choosing.
3. Cases Where You Need Discovery
APEX prohibits discovery. No depositions, no document requests, no interrogatories. If you need discovery to prove infringement, APEX won’t work.
4. Cases Where You Want Damages
APEX only gets you removal of the listings from Amazon. No damages, no attorneys’ fees, and the seller can keep selling through other channels. If your goal is monetary recovery, you’ll need federal court anyway.
Practical Steps: Due Diligence Before Filing APEX
If you’re considering APEX for a client, here’s your pre-filing checklist:
1. Identify the Seller’s Principal Place of Business
This is now critical. Before you file APEX, you need to know exactly where the accused seller is located. Check:
- Business registration records
- The seller’s “About” page on Amazon
- LinkedIn profiles for company officers
- State business entity databases
If the seller is in a patent-unfriendly jurisdiction and appears sophisticated, that’s a red flag.
2. Evaluate the Strength of Your Patent
Run through the same analysis you’d do before filing any patent litigation:
- How strong is the patent on validity? Could it survive an IPR?
- How strong is the infringement case?
- Can you prove infringement with visual evidence and simple functional explanations?
Remember: APEX decisions aren’t binding in federal court. If you lose on infringement in APEX, that doesn’t preclude your client from filing in federal court later. But if you win in APEX and the seller then files a federal lawsuit, the seller gets to raise all the invalidity arguments that weren’t available in APEX.
3. Assess Technical Complexity
Can you explain the infringement in 20 pages or less, without extensive technical detail? If not, APEX might not be suitable—and Amazon might reject it.
4. Consider the Seller’s Sophistication
Check:
- How long has the seller been in business?
- How many products do they sell on Amazon?
- Do they appear to have legal counsel (check for trademark registrations, responses to previous disputes)?
- What’s the dollar value of sales at stake?
A seller with a lot to lose and the resources to fight back is more likely to file a declaratory judgment action.
5. War-Game the Jurisdictional Risk
Ask yourself: if this seller files a declaratory judgment action in their home state, are we prepared to litigate there? Do we have local counsel? Is the jurisdiction favorable or unfavorable to patent owners? What’s our budget for federal litigation?
If the answers are bad, you might want to file in federal court first rather than using APEX.
The Bottom Line
APEX represents a genuine innovation in patent dispute resolution. The 30-day timeline and $4,000 cost structure make it accessible to small patent owners who could never afford traditional litigation. For the right case against the right defendant, APEX can be incredibly effective.
But the SnapPower decision has fundamentally changed the calculus. APEX is no longer a simple, low-risk enforcement tool. It’s a strategic decision that requires careful analysis of jurisdictional risk, patent strength, and opponent sophistication.
My advice? If you’re considering APEX for a client:
- Do your jurisdictional homework
- Make sure the case fits APEX’s streamlined format
- War-game what happens if the seller files a declaratory judgment action
- Have a backup plan for federal litigation
- Consider consulting with attorneys who have actually been through the APEX process
And if you do use APEX, document your jurisdictional analysis thoroughly. When your client asks why they’re now defending a patent case in California instead of the quick Amazon resolution you promised, you’ll want to show that you made an informed strategic decision based on the information available at the time.
Justin Miller is a solo patent attorney. In 2025 he started his own law firm, Distinct Patent Law, after nearly 15 years of practice. His firm is located in Saint Petersburg Florida. He serves clients in Tampa Bay, and because patent law is federal, can file patent applications for clients all over the United States.