Supreme Court Finds That The AIA Did Not Change Settled Pre-AIA Law That A “Secret” Sale May Trigger The On-Sale Bar
On January 22, 2019, the United States Supreme Court issued an opinion affirming a decision by the Court of Appeals for the Federal Circuit (CAFC) that the Leahy-Smith America Invents Act (AIA) did not change the “on sale” bar. Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 586 U.S., case no. 17-1229. The Supreme Court held that a commercial sale to a third party may still place the invention “on sale” under 35 U.S.C. § 102(a)(1) of the AIA, even if the third party was required to keep confidential the details of the invention.
Federal Circuit Affirms PTAB Finding That Article Is Not A “Printed Publication”
On November 6, 2018, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming a final written decision by the Patent Trial and Appeal Board (PTAB) finding the patent claims that had been challenged by inter partes review (IPR) to be not unpatentable. Acceleration Bay, LLC v. Activision Blizzard Inc., —F.3d—, (Fed. Cir. November 6, 2018). The CAFC ruled that the patent challenger had not proved that an article available on the Internet before the critical date was a “printed publication,” and that the article therefore was not available as prior art.