The Pseudo-Elimination of Best Mode: Worst Possible Choice?

Abstract

Even as it is hailed as the most significant legislative change to patent law in a half-century, some of the changes the U.S. Congress made in the Leahy-Smith America Invents Act are surprisingly equivocal. One provision captures this aspect of the Act particularly well: the pseudo-elimination of the best mode requirement. In this Essay, we develop the concern that by equivocating on the best mode requirement, Congress may have failed to achieve the goal of leveling the playing field between U.S. and foreign applicants. In fact, Congress may have tilted the playing field from uneven in one direction, if it ever was uneven, to uneven in the other.

Keywords: Patent, Patent Reform, Leahy-Smith, America Invents Act, Innovation, Best Mode, Patent Disclosure