US Supreme Court Decides that a “Secret” Sale or Offer for Sale of a Claimed Invention is Invalidating Prior Art Under the AIA

AIA did not change law pertaining to “on sale” activities.

The US Supreme Court in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., determined that because Congress retained the prior “on sale” language in the AIA, it also adopted the prior judicial interpretation of that phrase. Accordingly, the Court concluded that that the AIA did not change the law pertaining to “on sale” activities that do not disclose the claimed invention – a sale or offer of sale need not make an invention available to the public to constitute invalidating prior art. A copy of the January 22, 2019, decision is available here.

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