The Status of the Best Mode Requirement Under Patent Law

Traditionally, an application for a U.S. patent required the filer to provide a description of the best method of practice for the invention. Under the “best mode” requirement, patent filers must reveal the optimal method known to them for operating the invention in exchange for the benefits of obtaining legal protection for that invention. Subsequent patent reform legislation in 2011 established that patents could not be declared invalid for failure to make this disclosure, but patent filers are still statutorily obligated to adhere to the basic legal requirement to articulate the best mode of operation in their applications.

By preserving the best mode requirement while eliminating the consequences for noncompliance, filers may wonder to what extent they must make this disclosure on patent applications. Inventors may be motivated to exclude pertinent, valuable information that their competitors could view once the application is published at a future date. Moreover, the fate of the best mode requirement continues to be tenuous as it has long been the subject of legal criticism and was fiercely debated in Congress prior to the passage of the America Invents Act (AIA) in 2011.

Several justifications have been offered for eliminating the best mode defense. Some have argued that domestic and international patent law are now more closely aligned. Previously, the best mode requirement burdened applicants who file U.S. applications that claim priority to previously filed foreign applications because the best mode defense required these applicants to include a disclosure in the prior foreign application. Second, the best mode defense entails high litigation costs given the nature of the inquiry. Last, the utility of the requirement is questionable since applicants are not obligated to update or correct the best mode description after the application has been filed.

Connors & Associates provides experienced legal advice in the areas of patent, trademark and copyright law. John Connors and his team of associates have the expertise to counsel clients through the entire patent process. Contact Connors & Associates at (949) 833-3622 or visit them online to learn more about their services or to schedule a consultation.

Dylan Connors

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