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Intellectual Property Litigation Patent Litigation Regulations

Transactions Triggering the 35 USC §102 On-Sale Bar

Despite leaving unresolved the ambiguity about the effect of secret sales under §102, the Helsinn ruling offers clues to practitioners seeking to avoid the on-sale bar.

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The U.S. Court of Appeals for the Federal Circuit recently analyzed whether case law discussing the scope of the on-sale bar under 35 USC §102 as it stood prior to the America Invents Act (AIA) still applies to the revised §102 under the AIA. See, Helsinn v. Teva, No. 2016-1284, 2016-1787 (Fed. Cir. May 1, 2017). Despite leaving unresolved the ambiguity about the effect of secret sales under §102, the Helsinn ruling offers clues to practitioners seeking to avoid the on-sale bar.

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