Stroock Special Bulletin
"America Invents Act: Elimination of the Best Mode Defense"
As part of the enactment of the Leahy Smith America Invents Act ("Act"), failure to disclose the "best mode" in a patent application can no longer be used in a civil litigation as a ground to invalidate a patent. Specifically, Section 15 of the Act has amended Section 35 U.S.C. § 282 to eliminate "failure to disclose the best mode" as grounds for "invalidity of the patent of any claim in suit." The elimination of this defense was effective immediately upon enactment of the Act and applies to all proceedings commenced on or after September 16, 2011.
This Stroock Special Bulletin briefly discusses these changes and some of the potential implications.