Bayer AG v. Schein Pharmaceuticals, Inc.

Because the alleged best mode in this case was an intermediate, not the claimed invention, the district court correctly concluded that the best mode requirement “does not compel disclosure of the unclaimed method.” Bayer AG, 129 F.Supp.2d at 721. On this basis, I would affirm. I write to underscore the district court’s correct application of the statutory test for best modes. The alleged best mode in this case does not fall within the scope of the claims. Therefore, this case simply does not require creation of a new test for best modes.

I

Title 35 requires disclosure of “the best mode…