Design-Around Patent Strategies for Patentees and Competitors

The origins of incentives for designing around patents can be found in the policy objectives of the U.S. patent system. Our patent system's underlying policy considerations, balancing the interests of the patentee and public and fairness to all parties, actually encourage design-arounds. In the current system, while the patentee's property rights are protected, the public's right to design around the patent is also encouraged. Design-around improvements based on a patent are part and parcel of the patent bargain made by the patentee. The patentee obtains a monopoly to prevent others from making, using, selling or importing an infringing product while public knowledge is broadened in that technology.

Scenario: Your company has created a new invention and secured an issued patent claiming the invention. Patenting your invention is an important step in commercializing and marketing an inventive product; you have a market-driven incentive to invest in innovation. But is your patent “design-around” proof? Increasingly, companies are imitating their competitor's products by tweaking their own products just enough to avoid a patent infringement suit by a patentee. In today's competitive marketplace, a potential competitor has an incentive to design around your patent to produce an equivalent product that does not legally infringe your patent.