Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.​, U.S., No. 17-1229, amicus brief on the merits supporting neither party, filed 9/4/2018. September 4, 2018

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The Federal Circuit erred in construing the on-sale provisions of 35 USC 102 by failing to recognize that a sale creates a prior art disclosure only if the sale makes the claimed invention “publicly available,” AIPLA argued in a September 4, 2018 amicus brief to the Supreme Court.

When Congress enacted the AIA, it replaced the prompt filing inducement of patent forfeiture with the prompt filing inducement of a first-inventor-to-file system, but retained the policy of deterring actions (such as sale or public use) by prescribing circumstances when such actions become prior art against the claimed invention.

This feature of the legislation advanced the AIA objectives of bringing U.S. law closer to patent systems around the world and of making the U.S. patent system simpler, more objective, and more transparent than a first-to-invent system. 

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