February 2008 Archives

Trade Secrets and the Best Mode Requirement -- No. 15

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Anent the subject of Patent/Trade Secret complementariness, the best-mode requirement is a big bugaboo, based on the colossal misconception that patents and trade secrets are completely incompatible because of the best-mode requirement. In fact, there is nothing wrong with obtaining patent protection for a patentable invention and maintaining trade secret protection for the volumes of associated or collateral knowledge and know-how which is not contained in the patent specification after disclosing the "best mode," whatever it may be at the time of filing when only embryonic R&D data may be available.

There is another huge misconception about the best-mode requirement and that is that it is unique to U.S. patent law. Most recently, I noted a statement to that effect in the 2008 edition of Patent Law in a Nutshell, authored by none other than CAFC Judge Randall Rader, George Washington University Professor Martin Adelman et al. That did it for me and I dispatched the following remonstration to them:

"Gentlemen,

Recently I leafed through your 2008 edition of Patent Law in a Nutshell. It's a gem of a book. Congratulations! In doing so, I paid some attention to the "Best Mode" chapter, as I believe that the best mode requirement is no impediment to relying simultaneously on trade secret as well a patent protection for almost any invention, i.e. trade secrets protection for the tons of collateral knowledge and know-how which is not contained in the specification after disclosing the best mode, whatever it may be at the time of filing when most often only embryonic R&D data are available. See my piece on "The Best Mode Requirement: What is Fact and What is Fiction," Germeshausen Center Newsletter, Winter/Spring 2004, p.13-15 (www.piercelaw.edu/germeshausen/news.php).

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