In Memoriam Best Mode

7 Pages Posted: 22 Oct 2012 Last revised: 15 Nov 2012

Lee Petherbridge

Loyola Law School Los Angeles

Jason Rantanen

University of Iowa - College of Law

Date Written: April 25, 2012

Abstract

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act (“AIA” or “Act”). It embodies the most substantial legislative overhaul of patent law and practice in more than half a century. Commentators have begun the sizable task of unearthing and calling attention to the many effects the Act may have on the American and international innovation communities. Debates have sprung up over the consequences to inventors small and large, and commentators have obsessed over the Act’s so-called “first-to-file” and “post-grant review” provisions. Lost in the frenzy to understand the consequences of the new Act has been the demise of patent law’s “best mode” requirement.

The purpose of this Essay is to draw attention to a benefit the best mode requirement provides — or perhaps “provided” would be a better word — to the patent system that has not been the subject of previous discussion. The benefit we describe directly challenges the conventional attitude that best mode is divorced from the realities of the patent system and the commercial marketplace. Our analysis suggests that patent reformers may have been much too quick to dismiss best mode as a largely irrelevant, and mostly problematic, doctrine.

Keywords: patent, best mode, obviousness, America Invents Act

Suggested Citation

Petherbridge, Lee and Rantanen, Jason, In Memoriam Best Mode (April 25, 2012). Stanford Law Review Online, Vol. 64, p. 125, April 2012; U Iowa Legal Studies Research Paper No. 12-31; Loyola-LA Legal Studies Paper No. 2012-47. Available at SSRN: https://ssrn.com/abstract=2165346

Lee Petherbridge

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8194 (Phone)
213-380-3769 (Fax)

Jason Rantanen (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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