Best Mode: A Plea to Repair or Sacrifice this Broken Requirement of United States Patent Law

An inventor\u27s obligation to disclose the best mode of her invention is strong consideration in the U.S. patent bargain, but the courts paradoxically define the scope of that obligation, thus rendering the enforcement of U.S. patents unreasonably unpredictable. If an inventor cannot reasonably foresee the scope of her obligation to disclose invention details, then she is subjected to the costs and risks of either overcompliance or undercompliance with the best mode requirement. The scope of the best mode requirement should either be reliably defined by an en banc ruling of the Court of Appeals for the Federal Circuit, or the requirement should be discarded entirely by legislative action, preferably as a sacrificial bargaining chip during future international patent law harmonization efforts. Until then, however, an inventor should overcomply with the best mode requirement to avoid having her patent claims invalidated, or worse. In light of the disservice that the best mode requirement currently does to patent law, this article advocates a drastic legal change, either to stabilize the scope of the best mode requirement and thus render it fit for the purpose it was intended to serve, or to discard the requirement altogether. In addition, this article provides guidance for inventors in complying with the unpredictable best mode requirement. Section II of this article traces the evolution of the best mode requirement. Section III extracts a plain language definition of best mode from the current statutory and regulatory provisions. Then, the different standards of law regarding the scope of invention disclosure are chronologically culled from the case law in Section IV. Sections V and VI set forth a set of conclusions and recommendations, and, finally, Section VII provides a summary of the key points of this article. The Appendix provides aids for visualizing the author\u27s suggested definition and scope of the best mode requirement

The Role of Section 2 of the Sherman Act in International Patent Fraud: “Walk Softly and Carry a Big Stick”

This Article analyzes the monopolistic implications of Mannington Mills and considers the point at which international patent fraud may be determined unlawful monopolization or an unlawful attempt to monopolize

MCI Telecomm. Corp. v. Teleconcepts, Inc.

USDC for the District of New Jerse

The Many State Doctrines of Forum Non Conveniens

Forum non conveniens is not as ancient or monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, was only adopted by the U.S. Supreme Court for use in nonadmiralty cases in 1947; the doctrine’s “deep roots in the common law” are thought instead to have grown in the states. This Article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What we found should change how judges, practitioners, and scholars view the doctrine. First, forum non conveniens in the states does not have a “long history”—it is a twentieth-century phenomenon. Second, before the 1950s, no states permitted dismissal of claims brought against local defendants. Third, state experience with forum non conveniens has been and continues to be highly variable. Most states adopted a forum non conveniens doctrine only after the Supreme Court did; many initially rejected it, and half a dozen still prohibit its use in cases involving in-state plaintiffs or in-state causes of action. Idaho has yet to adopt the doctrine. In addition to these doctrinal lessons, the states’ experience with forum non conveniens provides a useful case study for examining what we term “procedural federalism,” meaning the interactions between state and federal institutions that affect procedural development. Procedural federalism reminds us that the procedure we have is not necessarily the “best” procedure we could conceive while simultaneously drawing our attention to pockets of divergence that may offer promising reforms. More broadly, it suggests a different approach to history than the one currently ascendant in federal courts and commentary. The iterative nature of procedural federalism makes clear that doctrines like forum non conveniens do not have perfect pasts, needing only to be rediscovered to be understood properly. Rather, procedural history is useful because it can help us understand how we ended up with the doctrines we have today, in order to better evaluate where we should go next