Supreme Court Rules That Even “Secret Sales” Can Place An Invention “On-Sale” Under the AIA

By Michael F. Snyder and Steven M. Kellner  On January 22, 2019, the United States Supreme Court ruled that the sale of an invention to a third party who is obligated to keep the invention confidential may place the invention “on sale” for purposes of the Leahy-Smith America Invents Act (AIA). The case is Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. With this decision, the Supreme Court answered a question about the “on-sale bar” to patentability that has lingered since the enactment of the AIA in 2011. Prior to the AIA, it was settled law that a sale embodying an invention, whether public or private, occurring more than one year before the filing date of a patent application for the invention qualified as invalidating prior art and created an “on-sale bar.” However, the AIA revised the language of 35 U.S.C. § 102 to state that a person may be entitled to a patent unless the claimed invention “was in public use, on…

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