Best Mode and the AIA

Posted Sunday, January 22, 2012.

An inventor with a novel and non-obvious invention may acquire a patent for that invention in exchange for an enabling disclosure. See “The Reason for Patents,” which I previously blogged about. The portion of U.S. patent law which codifies the particular content that must go into a patent application (35 U.S.C. §112) requires the inventor to disclose the “Best Mode” of implementing the invention.

Historically, should an inventor not disclose the best mode of the invention in the patent application, that inventor was vulnerable to having the patent invalidated in a patent litigation proceeding. Among the changes in the Leahy-Smith America Invents Act of 2011, the most significant revision to our patent laws since the 1952 act, is that failure to disclose best mode is no longer a cause for a patent to be invalidated. My colleague Mike Cicero has blogged about this revision here, and it’s an excellent read.

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