Volume 49, Issue 2
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In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., a Federal Circuit panel for the first time addressed the meaning of “on sale” in 35 U.S.C. § 102(a) after the America Invents Act (AIA). Prior to the AIA, 35 U.S.C. § 102 provided that “[a] person shall be entitled to a patent unless . . . (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” The AIA amended the prior art provisions of section 102 to provide “[a] person shall be entitled to a patent unless—(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” Helsinn presented the Federal Circuit with the first opportunity to address whether the AIA amendments changed the meaning of “on sale” in any way.
In a narrow decision, the Federal Circuit panel held the AIA amendments did not change the meaning of “on sale” to require that a sale make available to the public the invention itself in order to qualify as “on sale” prior art. The panel, however, failed to address whether the AIA changed the meaning of “on sale” in any way, including whether secret sales could be prior art post AIA. Helsinn sought rehearing en banc, which the Federal Circuit denied.
Helsinn has now filed a petition for certiorari. Helsinn’s petition frames the Question Presented to the Supreme Court as the following:
The BPLA Files Amicus Curiae Brief in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.
Ronal E. Cahill, NutterMicah W. Miller, Nutter
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