CAFC Dicta: Intentional Concealment Required for Best Mode Violation?

According to Circuit Judge Newman in HIGH CONCRETE STRUCTURES, INC. v. NEW ENTERPRISE STONE AND LIME CO., INC. decided July 29, 2004

"Invalidation based on a best mode violation requires that the inventor knew of and intentionally concealed a better mode than was disclosed. The specification states that the tilting action is assisted by gravity and does not need 'heavy equipment.' New Enterprise conceded, for purposes of its motion for summary judgment, that the placement of the pivot point four inches from the center of gravity was at "about" the center of gravity. High Concrete argued that since the tilting occurs primarily with gravity, the loading crane is a stabilizing and safety device, as any person in the field would understand and use for heavy or bulky cargo. New Enterprise conceded that use of a crane to assist with heavy loads is well known to persons in the field of loading cargo. There was neither evidence nor inference of concealment of this information by the inventors."

"Deliberate concealment is not charged. The best mode requirement of §112 is not violated by unintentional omission of information that would be readily known to persons in the field of the invention."

Cf, e.g., MPEP Sec. 2165 (active concealment not required for best mode violation)