27
Aug/18

IPO Amicus in Helsinn Healthcare v. Teva Pharmaceutical re OnSale Bar


Amicus Brief of Intellectual Property Owners Association, in support of neither party, drafted by my colleagues Rob Isackson, Matt Kaufman and Lauren Sabol.

ARGUMENT

I. Proper Application of the Post-AIA OnSale
Bar Is Critically Important to All
Industries and Fields of Technology

II. The Post-AIA On-Sale Bar Provision Should
Be Interpreted to Exclude Secret Sales

a. Statutory Construction Principles
Confirm That Congress Intended to Exclude Secret Sales from the
On-Sale Bar

b. The Legislative History of the AIA
Confirms That Secret Sales Were
Meant to Be Excluded

III. Excluding Secret Sales Is Consistent
with Congress’ Intent for the AIA to
Harmonize United States Patent Laws
with Other Countries

IV. The Fe der a l C i r c u it D e c i sion Is
Inconsistent with Other Interpretations
of the On-Sale Bar

a. The Federal Circuit’s En Banc
Decision in Medicines Compels a
Result That the Invention Was Not OnSale
in the Present Case

b. The Federal Circuit’s Decision Does
Not Square with Pfaff’s Requirement
That the Invention Be Public to Be
On Sale

c. The USPTO’s Post-AIA View of the
Scope of the On-Sale Bar Excludes
Secret Sales

d. The Concurrence Misapprehends
IPO’s Medicines Argument

 

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