An anonymous reader writes: Historically, inventors would have to disclose the 'best mode' or method of practicing the invention known to them at the time of filing for U.S. patent protection. A little-known provision of the recently enacted American Invents Act in effect removes this requirement, according to two professors writing in the Stanford Law Review: 'Before the AIA, if it came to light during an infringement suit that an applicant knew of a best mode of practicing its invention and failed to disclose that best mode in its patent specification, courts were required to declare the relevant patent claims invalid. . . . [W]hile it is technically true that amended 35 U.S.C. 112 still “requires” patent applicants to disclose a best mode if they know of one, courts will no longer enforce the requirement. There is little dispute that this development has, as a practical matter, effectively eliminated the best mode requirement from patent law.'
This change has serious consequences: 'The best mode requirement will be missed because it provides an important and unappreciated benefit to the patent system’s incentive structure. More specifically, the requirement protects the “ultimate condition of patentability”: the doctrine that for an invention to be patentable it must be nonobvious to a person having ordinary skill in the art at the time the invention was made. Indeed, the best mode requirement is part and parcel of the doctrine that only nonobvious inventions are patentable. Best mode plays a critical role in establishing the level of “inventiveness” necessary for a patent that the American patent system has long considered optimal.'
