Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., Fed. Cir., Nos. 16-1284, 7/14/2017 July 14, 2017

A Federal Circuit panel misconstrued the statutory language and legislative history of 35 U.S.C. 102(a)(1), as amended by the America Invents Act (AIA), when it invalidated a patent based on a press release and SEC filing about a sales agreement by the patent owner, according to an AIPLA amicus brief urging en banc review of the case.

The brief explains that the panel failed to recognize that the AIA abandoned the so called "on-sale bar" for sales more than a year before the filing date, instead establishing the prior art effect for sales available to the public before the application's "effective filing date," defined in 35 U.S.C. 100(i). The panel opinion conflicts with the premises of transparency and predictability that underlie the changes enacted by the AIA, according to the brief.