Question 32
Domain 1: Patentability Requirements and Patent FundamentalsWhich of the following is true about the best mode requirement under AIA?
Correct answer: B
Explanation
Under the AIA, 35 U.S.C. § 282(b)(3)(A) limits invalidity defenses, so failure to disclose the inventor’s best mode is no longer a basis to invalidate a patent. But 35 U.S.C. § 112 still requires the specification to “set forth the best mode contemplated by the inventor,” so the duty to disclose remains.
Why each option is right or wrong
A. Best mode has been completely eliminated
B. Best mode is still required in the specification but failure to disclose it is no longer a basis for invalidation
35 U.S.C. § 112(a) still requires the specification to describe the invention and set forth the inventor’s best mode contemplated for carrying it out, so the disclosure obligation remains in the patent document. But the AIA amended 35 U.S.C. § 282(b)(3)(A) to remove failure to disclose best mode as an invalidity defense, so an accused infringer can no longer use nondisclosure of best mode to invalidate the patent.
C. Best mode must be disclosed and can be enforced by the USPTO during prosecution
D. Best mode applies only to design patents