In re Nelson, 280 F.2d 172, 126 USPQ 242 (CCPA 1960). “The best mode requirement creates a statutory bargained- for-exchange by which a patentee obtains the right to exclude others from practicing the claimed invention for a certain time period, and the public receives knowledge of the preferred embodiments for practicing the claimed invention.” Eli Lilly & Co. Barr Laboratories Inc., 251 F.3d 955, 963, 58 USPQ2d 1865, 1874 (Fed. The requirement does not permit inventors to disclose only what they know to be their second-best embodiment, while retaining the best for themselves.
However, inventors in this circumstance should document the absence of a best mode carefully in their invention notebook, lest any suggestion of intent to suppress a best mode later arise.The inclusion of such proscribed language in a federal government publication would not be in the public interest.Also, the inclusion in application drawings of any depictions or caricatures that might reasonably be considered offensive to any group should be similarly objected to. 122(b) and an examiner should not pass the application to issue until such language or drawings have been deleted, or questions relating to the propriety thereof fully resolved. 112, revision of the application should be required. The written description must not include information that is not related to applicant’s invention, e.g., prospective disclaimers regarding comments made by examiners. shall set forth the best mode contemplated by the inventor of carrying out his invention. The best mode requirement is a safeguard against the desire on the part of some people to obtain patent protection without making a full disclosure as required by the statute. This is a subjective inquiry which focuses on the inventor’s state of mind at the time of filing. The failure to disclose a better method will not invalidate a patent if the inventor, at the time of filing the application, did not know of the better method ORdid not appreciate that it was the best method. Revised to add information pertaining to the oath or declaration requirement under 37 CFR 1.63 for continuing applications filed on or after September 16, 2012, as necessitated by the provisions in the AIA.