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What does "Design Around" Mean?

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  • Written By: John Markley
  • Edited By: Melissa Wiley
  • Last Modified Date: 26 November 2016
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    Conjecture Corporation
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Design around is a term used in the discussion of patents for inventions. Designing around a patent means creating a new invention that performs the same function as an existing patented invention but is different enough that it does not not infringe on the intellectual property rights of the patent holder. The term design around can also be used to describe something that is created as a result of this process.

This is a common practice in many fields, as creating a design-around can give an inventor or company the opportunity to sell products in markets that would otherwise be closed to them by intellectual property law. Patenting an invention requires the inventor to reveal how the invention is made. This often makes it easier and less costly for potential competitors to find other ways to accomplish the same task as the original invention, because knowing one way that a problem can be solved provides insights into the problem itself that can point to other solutions. Creating an incentive to design around existing technologies is often considered an important benefit of the patent system, as it encourages inventors to explore different ways of approaching the same problem.

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Design-arounds are more common ins some industries than others, depending on factors such as development costs and the ease with which knowledge from an existing invention can be used to create a workable alternative. Development of new pharmaceuticals can be enormously expensive, for example, with development costs for a single new drug frequently rising into the hundreds of millions or even billions of dollars before it is actually ready to be sold. Consequently, pharmaceutical companies frequently try to design around new drugs patented by their competitors, because it can be far less costly and risky.

The difficulty of creating a design-around can vary according to how wide the scope of the original patent is. Every modern patent includes claims, which describe in detail what the patent holder holds exclusive rights to. These claims are limited to attributes of the invention that are novel and so distinguish it from the body of knowledge that existed prior to the invention's creation. A successful design-around must be able to serve as an alternative to the original invention without infringing on the claims of the original patent. Disputes as to whether a design-around is sufficiently different from an existing patented invention are a common cause of patent-related litigation.

In some cases, patent holders may try to impede the creation of design-arounds by competitors by acquiring a large number of related patents. This creates what is often called a patent thicket. The patent thicket's purpose is to make it more difficult to design around the original patent by increasing the number of claims that the competitor must avoid infringing while trying to create an alternative to the original invention or making it prohibitively expensive for competitors to license existing patented technologies that overlap with the competitor's own design.

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