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Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.

Supreme Court to Review AIA On-Sale Bar

Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., No. 17-1229, 2018 WL 1142984 (U.S. cert. granted June 25, 2018) (Per curiam) (Fed Cir (DYK, Mayer, O’Malley)) (D.N.J.: Cooper) (5 of 5 stars)

The Supreme Court has granted certiorari to review the application of the on-sale bar. The Federal Circuit held (855 F.3d 1356 (Fed. Cir. 2017)) that Helsinn’s four patents (three pre-AIA, one post-AIA) were invalid under the on-sale bar. As to the post-AIA patent, the Fed Cir rejected Helsinn’s argument that the on-sale bar does not apply to sales that keep the actual details of the patented invention confidential.

Helsinn’s cert petition presented the following question:

Whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.

KEYWORDS: ANTICIPATION; ON-SALE BAR; AMERICA INVENTS ACT