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Federal Circuit Negative on Best-mode Defense
The U.S. Court of Appeals for the Federal Circuit has taken an increasingly dim view of an accused infringer's attempt to invalidate the claims of a patent-in-suit by alleging that the patentee failed to satisfy the best-mode requirement.
Recent Federal Circuit decisions, such as Eli Lilly & Co. v. Barr Labs. Inc., 251 F.3d 955 (Fed. Cir. 2001), and Bayer A.G. v. Schein Pharms. Inc., 301 F.3d 1306 (Fed. Cir. 2002), have, with near uniformity, converted the best-mode analysis into a narrow, quasi-legal inquiry that focuses on the scope of the claimed invention, with careful attention to just what is claimed. The specification of all patents, including those claiming pharmaceutical inventions, must 'set forth the best mode contemplated by the inventor of carrying out his invention.' 35 U.S.C. 112, 1. As the Eli Lilly court stated, this best-mode requirement embodies a quid pro quo whereby a 'patentee must not receive the right to exclude others unless at the time of filing he has provided an adequate disclosure of the best mode.' The penalty for failure to satisfy this requirement is harsh: The patent claims covering the subject matter for which the best mode was not disclosed are rendered invalid. See Amgen Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1209 n.5 (Fed. Cir. 1991).
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.