What are the consequences of failing to disclose the best mode in a patent application?

What are the consequences of failing to disclose the best mode in a patent application?

Failing to disclose the best mode in a patent application can have serious consequences, although these have been somewhat mitigated by the America Invents Act (AIA). The potential consequences include:

• Rejection during examination: The USPTO may reject the application if it determines the best mode has not been disclosed.
• Post-grant challenges: While the AIA limited the use of best mode in litigation, it may still be a basis for post-grant review proceedings.
• Ethical concerns: Intentionally withholding the best mode could be considered a violation of the duty of disclosure.

MPEP 2165 states: “The best mode requirement creates a statutory bargained-for-exchange by which a patentee obtains the right to exclude others from practicing the claimed invention for a certain time period, and the public receives knowledge of the preferred embodiments for practicing the claimed invention.” Failing to uphold this bargain could undermine the patent’s validity and the inventor’s credibility.

To learn more:

• best mode
• patent application
• consequences
• duty of disclosure