Best Mode Disclosure for Patent Applications: An International and Comparative Perspective

Abstract

The best mode disclosure requirement helps to ensure that the public receives a full and honest disclosure in return for the grant of patent. It has a profound theoretical basis and foundation. The best mode disclosure requirement is an optional obligation under the TRIPS Agreement in its Article 29. Among the most important developed countries that have implemented this disclosure requirement are the US and Japan; however, there are certain differences in their national laws and practices, especially with regard to the legal effect of this requirement. In the US, patent reform is tending towards removing the best mode disclosure from the list of reasons to invalidate a granted patent; although, the requirement will still apply to all patent applications during patent prosecutions. Developing countries are recommended to consider adopting the best mode disclosure requirement in their patent laws. It is proposed that patent applicants be required to disclose the best mode which shall be a substantive condition for patent grant; however, the failure to disclose the best mode may not constitute a reason to invalidate a granted patent.

The objective of this article is to study the best mode disclosure requirement from an international and comparative perspective, and suggest how developing countries should implement this disclosure requirement. The article also seeks to answer to two questions: whether a developing country should implement the best mode disclosure requirement, and if so, how to best implement it?

Keywords: patent, best mode, disclosure requirements, TRIPS Agreement