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Lack of Intentional Concealment Derails Best Mode Defense in Patent Challenge

Friday, May 24, 2013
By Tony Dutra

There was no proof that a patent holder intentionally concealed the best mode of implementing its claimed apparatus, the U.S. Court of Appeals for the Federal Circuit ruled May 21 in a 2-1 decision (Ateliers de la Haute-Garonne v. Broetje Automation USA Inc., Fed. Cir., No. 2012-1038, 5/21/13).

The majority, reversing a lower court's invalidity judgment, held that a 1962 decision by the Court of Customs and Patent Appeals--the predecessor to the Federal Circuit--requiring intentionality was still good law. The dissent contended that subsequent decisions by the CCPA rejected the requirement.

The America Invents Act eliminated the best mode defense in litigation for any action filed on or after the AIA enactment date, Sept. 16, 2011, so the court's opinion has a short life in any case.


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