In Memoriam Best Mode
Loyola Law School Los Angeles
University of Iowa - College of Law
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
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.
Number of Pages in PDF File: 7
Keywords: patent, best mode, obviousness, America Invents Act
Date posted: October 22, 2012 ; Last revised: November 15, 2012