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Unpublished Paper
Is "Best Mode" the Worst? Dueling Arguments, Empirical Analysis, and Recommendations for Reform
ExpressO (2010)
  • Wesley D Markham, New York University
The “best mode” requirement, which mandates that an inventor disclose in her patent application the best way to practice her invention, has become a polarizing force as Congress endeavors to comprehensively revamp U.S. patent law. In this article, I examine the “best mode” requirement through a variety of lenses. In doing so, my ultimate goal is to recommend the ideal course of action for “best mode” reform – to fix “best mode,” if it is indeed broken, or to scuttle it if it is beyond repair. To begin, I set forth and evaluate the arguments advanced by both proponents and opponents of the “best mode” requirement, paying particular attention to the viewpoints of neutral parties such as academics, governmental actors, and quasi-governmental actors. I find that a significant majority of both interested and neutral parties favor eliminating or substantially modifying the “best mode” requirement. I then shift from the realm of the qualitative to that of the quantitative, analyzing recent decisions in patent cases from U.S. District Courts, the Court of Appeals for the Federal Circuit, and the Board of Patent Appeals and Interferences. Unfortunately for “best mode” supporters, my analysis shows that, in practice, “best mode” only plays an important role in a small percentage of patent lawsuits and has de minimis impact on the patent procurement process. I conclude by recommending a radical change to the “best mode” requirement: simultaneously strengthening “best mode” and eliminating it as a defense in patent lawsuits. This solution provides the optimal incentives to minimize strategic behavior by both patentees and accused infringers, reduce litigation costs, and improve meaningful disclosure in patent applications, thereby promoting innovation.
  • best mode,
  • 35 U.S.C. 112,
  • patent reform,
  • patent policy,
  • patent
Publication Date
March 1, 2010
Citation Information
Wesley D Markham. "Is "Best Mode" the Worst? Dueling Arguments, Empirical Analysis, and Recommendations for Reform" ExpressO (2010)
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