23rd August, 2017
The Court of Appeals for the Federal Circuit recently clarified, in the Helsinn v. Teva case, elements required for a sale to qualify as a bar to patentability under 35 U.S.C. § 102. A license agreement and supply agreement that detailed the product and two possible dosages, in combination with a press release that announced the agreements, were found to be a bar to patentability in the U.S.A.
Accordingly we should advise our clients:
- to consider that such sales agreements, when made public, could preclude their ability to obtain patent protection for their inventions; and
- to contemplate filing a patent application containing at least as much information as would be contained in such a sales agreement, prior to entering into and publicizing such an agreement.
The CAFC Decision is available in full here.