Define: Colorable Deviation

Colorable deviation, also known as colorable alteration, is a minor modification made to a product or process that does not significantly alter it but is solely intended to differentiate it from an existing patent or copyright. The purpose of this modification is to avoid infringing on the claims of the earlier patent. This practice is frequently employed in the field of intellectual property law.

A colorable deviation refers to a minor alteration made to a product or process in order to differentiate it from an existing patent or copyright, without substantially altering its essence. It is a modification made solely to avoid direct infringement of a previous patent’s claim. For instance, suppose a company holds a patent for a red bicycle with a bell on the handlebars. Another company wishes to create a similar bicycle but wants to avoid infringing on the first company’s patent. As a solution, they produce a blue bicycle with a horn on the seat instead of a bell. This qualifies as a colorable deviation because the changes made are minimal and do not significantly alter the product, but they serve the purpose of avoiding infringement on the first company’s patent. In summary, a colorable deviation involves making slight adjustments to a product or process to evade infringement on an existing patent or copyright. These modifications are not substantial enough to drastically change the product, but they are sufficient to distinguish it from the original version. This allows the second company to avoid infringing on the first company’s patent while still producing a similar product.

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This glossary post was last updated: 17th April 2024.