The Leahy-Smith America Invents Act (AIA), signed into law on September 16, 2011, represents the most significant overhaul of the United States Patent system since the Patent Act of 1952. In addition to making the United States a “first-to-file” system, which is more in line with the patent law of other countries, the act institutes numerous other changes aimed at ensuring that the United States “maintains its competitive edge in the global economy.” One of these changes eliminates failure to disclose the best mode as a defense in patent infringement litigation. Proponents applaud the change for the positive effect it will have on patent litigation, specifically, reducing the time and cost of litigation by eliminating pre-trial discovery associated with trying to ascertain what the inventor knew when the patent application was filed. The critics bemoan the change, arguing that the law removes the only enforcement mechanism to ensure that the inventor will fully disclose the invention to the public. This Comment explores the reasons for making the change, the practical effect those changes will have on best mode disclosure, and why the new law will not have the undesirable effect of reducing best mode disclosure.
Andrew R. Shores, Change to the Best Mode Requirement in the Leahy-Smith America Invents Act: Why Congress Got It Right, 34 Campbell L. Rev. 733 (2012).