# science people, how difficult is it...\[to reproduce a product from a patent document\]

**URL:** <https://boards.straightdope.com/t/science-people-how-difficult-is-it-to-reproduce-a-product-from-a-patent-document/623610>\
**Category:** Factual Questions\
**Created:** [May 31, 2012, 2:15am UTC](https://boards.straightdope.com/t/science-people-how-difficult-is-it-to-reproduce-a-product-from-a-patent-document/623610 "2012-05-31T02:15:19Z")\
**Posts on this page:** 2\
**Page:** 2

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**Author:** ![Gray\_Ghost](https://avatars.discourse-cdn.com/v4/letter/g/c0e974/32.png) [@Gray\_Ghost](https://boards.straightdope.com/u/Gray_Ghost)\
**Post date:** [May 31, 2012, 5:41pm UTC](https://boards.straightdope.com/t/science-people-how-difficult-is-it-to-reproduce-a-product-from-a-patent-document/623610/21 "2012-05-31T17:41:35Z")

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> [@Absolute](#):
>
> I did not mean to imply otherwise in my post - in order to avoid violating the best mode requirement, my hypothetical inventor would historically have had to file the first application before beginning his optimization / commercialization work.
> 
> However, Congress nullified the best mode requirement with the America Invents Act in 2011, which has been signed into law. Failure to disclose the best mode is no longer a basis for invalidating a patent.

You are correct, [as section 15 of the bill text](http://judiciary.house.gov/issues/Patent%20Reform%20PDFS/112hr1249eh.pdf#page=116) shows. From it, “…except that the failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or held invalid or otherwise unenforceable…” Ignorance fought, though I wonder why the MPEP link I cited still showed best mode as a requirement then?

Aside, I also wonder if willful failure to disclose the best mode in a patent application pre 2011 could still constitute inequitable conduct before the PTO, even though there doesn’t seem to be best mode claim invalidity any more? For those of you involved in prosecution now, does the PTO still want you to disclose the best mode in the application, even though failure to do so is no longer grounds for invalidating a claim?

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**Author:** ![WarmNPrickly](https://avatars.discourse-cdn.com/v4/letter/w/d78d45/32.png) [@WarmNPrickly](https://boards.straightdope.com/u/WarmNPrickly)\
**Post date:** [May 31, 2012, 6:09pm UTC](https://boards.straightdope.com/t/science-people-how-difficult-is-it-to-reproduce-a-product-from-a-patent-document/623610/22 "2012-05-31T18:09:55Z")

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> [@Absolute](#):
>
> Well, some points.
> 
> First, as the inventor, you have a 1-year grace period before your own published work / public disclosure / offer for sale can be counted against you.

Not anymore. In order to bring US patent law in accordance with other countries, the grace period no longer exists. This is a change made in the past year.

As far as selling a product goes, all I know is that I’m being told otherwise.

It’s true that your notes don’t count as prior art, but your notes will prove that your work was not based on that invention. One case I can think of is the discovery of COX-2 inhibitors. I’m not clear on specifics, but the patent on all COX-2 inhibitors was either invalidated or reduced in scope because a notebook demonstrated that they had already been working on it.

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