On May 1, 2017, a Federal Circuit panel in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., Appeal Nos. 2016-1284, 2016-1787, held four pharmaceutical patents invalid under the on-sale bar of 35 U.S.C. § 102(b). Three patents were governed by the version of 102(b) that existed prior to the passage of the 2011 America Invents Act (“AIA”). A fourth was governed by the post-AIA version of 102(b). With the Helsinn decision, the Federal Circuit clarified that, under the post-AIA version of 102(b), public disclosure of the existence of the sale of a patented item may suffice to invalidate patent under the on-sale bar, even if “the details of the invention” are not “publicly disclosed in the terms of sale.”
