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Nanotechnology and the Best Mode
Volume 2, Issue 3

Matthew J. Dowd, Sterne, Kessler, Goldstein & Fox P.L.L.C.
Nancy J. Leith, Sterne, Kessler, Goldstein & Fox P.L.L.C.
Jeffrey S. Weaver, Sterne, Kessler, Goldstein & Fox P.L.L.C

The number of nanotechnology-related patent applications being filed with the Patent & Trademark Office (“PTO”) has steadily increased over the last few years—a trend that is certain to continue. One factor driving this trend is the need for nanotechnology start up companies to present a vibrant patent portfolio in order to attract much needed investment dollars. Associated with this increased patent activity, patent practitioners are faced with the challenge of certifying that such inventions comply with the traditional patentability standards. In this article, Matthew J. Dowd, Nancy J. Leith and Jeffrey S. Weaver address the particular challenge of ensuring a nanotechnology invention’s compliance with the “best mode” requirement of Section 112 of the Patent Statute. Following a detailed discussion of the best mode requirement in light of Federal Circuit precedent, Dowd, Leith and Weaver outline several helpful suggestions that may benefit the patent practitioner in prosecuting nanotechnology applications with an eye toward avoiding allegations of best mode violations should the patent be later litigated. Important considerations are included regarding the best mode requirement and due diligence investigations, and the pros and cons of trade secret protection for nanotechnology inventions are briefly discussed.

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