In today's fiercely competitive business environment, patent disputes are frequent, posing significant patent challenges for enterprises. Statistics show that patent litigation between companies like Baidu and Sogou often involves billions of yuan, and disputes involving Qualcomm and Apple, Huawei and Samsung include dozens of patents. As major innovators increasingly apply for patents, the patent landscape becomes denser, raising barriers to technological innovation and increasing infringement penalties. Against this backdrop, patent avoidance design has become a critical strategy for enterprises to overcome patent challenges and achieve sustainable development.

I. The Concept and Value of Patent Avoidance Design

Patent avoidance design, also known as design-around, involves enterprises re-developing or redesigning products or features to differentiate them from potentially infringing patents, thereby avoiding infringement risks. This design essentially belongs to R&D activities, marked by legal non-infringement, commercial competitiveness, low-cost technological innovation, and the formation of proprietary patent technologies.

II. Key Points of Patent Avoidance in Various Stages of Product Development

1 Choice of Technical Route: The key here is to select technical routes with fewer patent barriers. Enterprises need to comprehensively analyze existing patent layouts in the market, avoid dense patent areas, and find technological innovation gaps or weaknesses. For example, in emerging technology fields, the number of related patents is relatively low, allowing enterprises to preemptively position themselves to reduce potential patent disputes.

2 Determination of Product Plan: The focus is on achieving key product functions while avoiding infringement risks of core product plans. Enterprises should conduct in-depth patent analysis of core technology plans and optimize them to ensure they don’t fall within the protection scope of existing patents.

3 Pre-market Evaluation: Conduct a comprehensive risk assessment to ensure smooth product launch. This involves reviewing the patent status of the product itself and paying attention to the patent issues of supporting plans to avoid affecting market promotion due to infringement of supporting solutions.

III. Basic Processes and Methods of Patent Avoidance Design

1 Stability Analysis Before Avoidance: Utilizing information tools for stability analysis can effectively avoid unnecessary avoidance costs. For example, referring to examination opinions of patent families is an important method.

2 Appropriate Use of Existing Technologies: This includes referencing prior technologies in the specification, cited prior technologies in target patents, and expired patent solutions with similar functions or effects. Enterprises can utilize background or related technologies described in the specification to find avoidance solutions.

3 Flexible Application of Infringement Judgment Rules:

• Reducing Technical Features: Avoid the doctrine of equivalents by reducing technical features, ensuring that the reduced feature does not affect the main function and has relatively independent technical functions or effects.
• Replacing Technical Features: When replacing technical features, ensure that the replacement has significant differences in means, function, and effect from the original feature, not obvious to ordinary technicians in the field without creative effort.
• Utilizing the Doctrine of Donation: Courts typically do not support including solutions described only in the specification or drawings but not claimed in infringement disputes. However, the donation scheme must be specifically and clearly recorded in the specification or drawings.
• Utilizing the Estoppel Doctrine: Courts do not support including solutions abandoned during patent authorization or invalidation procedures in infringement disputes. However, evaluate whether the statements made by the right holder have been "explicitly negated."
• Changing Technical Means, Functions, and Effects: When these differ significantly from the technical features in patent claims, the doctrine of equivalents can be avoided.

4 Effective Borrowing at the Level of Invention Principles: Borrow the technical problems solved by the target patent and apply other scientific principles from the scientific effect library to solve them.

IV. Construction of a Patent Avoidance System

• Pre-search: Conduct comprehensive scans of target patents and their families before R&D to assess stability.
• Dynamic Monitoring: Track competitor patent layouts and litigation dynamics, adjusting plans promptly.
• Cross-department Collaboration: Ensure technical feasibility and legal safety through cooperation between R&D, legal, and marketing teams.
• Reverse Layout: Apply avoidance results as proprietary patents to build defensive barriers.

Patent avoidance design is an essential skill for enterprises to survive and thrive in the patent jungle. Enterprises should fully recognize the importance of patent avoidance design and integrate it throughout the entire process of product development, design, production, and sales. Additionally, collaborating with professional intellectual property law firms is recommended to leverage expert resources for better patent avoidance design, thereby mitigating patent risks and achieving innovative development in competitive markets.