USCAFC Decision Concerning On Sale Bar in Helsinn v. Teva

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:

  1. to consider that such sales agreements, when made public, could preclude their ability to obtain patent protection for their inventions; and
  2. 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.

FICPI's full report on the Decision may be found here.

Sharon E. Crane, PhD.
FICPI Study & Work Commission (CET)
Group 5 - Technology-Related Patent Issues