In recent years, the frequency of patent infringement claims against some retailers has been steadily rising. This is certainly not an industrywide trend, as the total number of patent cases filed against the country’s 50 largest retailers actually declined slightly from 2006 (162 cases) to 2009 (only 150). On an individual basis, however, some of the increases have been significant—especially among on-line retailers. Amazon.com saw only six patent cases in 2006 versus 20 in 2009, while over the same period the number of cases for eBay jumped from four to nine. This data is perhaps not surprising, given the steady increase in on-line shopping over the same period of time.
On the other hand, some traditional “brick and mortar” retail chains saw patent claims decline sharply over the past few years. Wal-Mart had 15 patent cases filed against it 2006 versus only nine in 2009; Target saw a similar drop, from 34 cases in 2006 to 16 in 2009. Even in this part of the retail sector, however, there is a strong possibility of increased activity going forward, given the recent wave of so-called “false patent marking” cases that are being filed around the country.
While the high-tech and “big pharma” industries face patent claims regularly, and thus are generally familiar with how to defend this type of case, patent litigation is often an unfamiliar environment for a retailer that does not design or make its own products, but instead resells merchandise provided to it by its suppliers. However, as the rising incidence of patent litigation in the retail sector demonstrates, all retailers need to be familiar with the steps they should take if faced with a patent-related lawsuit. This paper will summarize some of the key issues that should be kept in mind.