How does the America Invents Act (AIA) affect the best mode requirement?
How does the America Invents Act (AIA) affect the best mode requirement?
The America Invents Act (AIA) made significant changes to U.S. patent law, including modifications to the best mode requirement. According to MPEP 2165.01:
“Section 15 of the Leahy-Smith America Invents Act (AIA) did not eliminate the requirement for a best mode disclosure as set forth in pre-AIA 35 U.S.C. 112, first paragraph. However, effective September 16, 2011, AIA 35 U.S.C. 282(b)(3)(A) expressly states that the failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable.”
This change means that while inventors are still required to disclose the best mode of carrying out their invention, failure to do so is no longer a grounds for invalidating a patent in litigation. However, the USPTO still examines applications for compliance with the best mode requirement, and applicants must still make a good faith attempt to disclose the best mode known to them at the time of filing.
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