By Jason Rantanen
When Congress passed the America Invents Act and President Obama signed it into law, courts were stripped of the power to declare patents either invalid or unenforceable for failure to disclose a best mode. While it is true that amended section 112 of Title 35 still technically "requires" patent applicants to disclose a best mode if they know of one, courts will no longer enforce the requirement. For all practical purposes, the requirement that a patent applicant disclose a best mode is effectively dead.
Yet, perhaps in moving to eliminate the best mode requirement Congress acted too hastily. In a recent online essay published by the Stanford Law Review, Lee Petherbridge and I draw attention to a benefit the best mode requirement provides (or perhaps "provided" is more accurate) that directly challenges the conventional attitude toward best mode, arguing that best mode works closely with the nonobviousness requirement to establish the level of "inventiveness" that the U.S. patent system has long considered optimal.
You can read the complete essay here: http://www.stanfordlawreview.org/online/in-memoriam-best-mode