Secret Sales Are Still Prior Art under the On-Sale Bar

In a short, unanimous opinion, the Supreme Court held that “secret sales” count as prior art under the on-sale bar. The Court, in the anticipated case Helsinn Healthcare v. Teva Pharmaceuticals, found that Helsinn’s agreement to sell the patented product counted as prior art against its patent stemming from an application two years after the agreement, even though the details of the product were kept confidential. This case begins with Helsinn developing the active ingredient for the drug Aloxi, which treats chemotherapy-induced nausea. In early 2000, Helsinn submitted the drug to the Food and Drug Administration (FDA) for clinical trials with the to-be-patented formulation of 0.25 mg of palonosetron. Later that year, Helsinn made a deal with a marketing partner to license and supply the drug. The agreement was publicly announced, and Helsinn made public submissions to the Securities and Exchange Commission. These public statements did not include the…

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