What are the consequences of failing to disclose the best mode?

Failing to disclose the best mode can have significant consequences, although these have been modified by recent legislative changes. According to MPEP 2165:

1. Prior to the America Invents Act (AIA), failure to disclose the best mode could result in a patent being held invalid or unenforceable.
2. Post-AIA, while the best mode requirement still exists, failure to disclose it cannot be used as a basis for invalidating a patent in litigation.
3. During patent examination, applications can still be rejected for failing to meet the best mode requirement.

The MPEP states:

“Failure to disclose the best mode need not rise to the level of active concealment or inequitable conduct in order to support a rejection. Where an inventor knows of a specific material or method that will make possible the successful reproduction of the claimed invention, but does not disclose it, the best mode requirement has not been satisfied.“

This indicates that even unintentional failure to disclose the best mode can lead to issues during patent examination. However, the consequences in patent litigation have been significantly reduced by the AIA.

To learn more:

• best mode disclosure
• patent rejection
• patent invalidity
• AIA changes