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14 J. Bus. & Tech. L. Proxy 1 (2020)

handle is hein.journals/jbtprxy14 and id is 1 raw text is: 









  Helsinn Healthcare S.A. v. Teva Pharm. USA,

  Inc.: 35 U.S.C. § 102 Looks Like a New Duck

  and Sounds like a New Duck, but the On-Sale

                 Bar is the Same Ole Goose




                             CHRISTOPHER  HOWES*o

In Helsinn Healthcare S.A. v. Teva Pharm.  USA, Inc.,' the Supreme  Court of the
United  States addressed whether  the  America  Invents Act (AIA) changed  the
meaning  of the on-sale bar to allow an  invention to be considered  not on sale
when  it is subject to a commercial sale to a third party that is required to keep the
invention confidential.2 The Court correctly held that the on-sale bar applied to
Helsinn Healthcare S.A.'s patent governed  by the AIA because  Congress  did not
clearly express its intent to change the years of pre-AIA precedent,3 Helsinn and
MGI's transaction was not secret and placed the invention on sale as defined by its
claims,' and the holding furthers the promotion  of the progress of science and
useful arts.s

                                  I.      THE CASE

Helsinn Healthcare S.A. (Helsinn) is the owner of the four patents-in-suit, U.S.
Patent Nos. 7,947,724 ('724 patent), 7,947,725 ('725 patent), 7,960,424 ('424
patent), and 8,598,219 ('219 patent) (collectively, the patents-in-suit), which
are directed to  reducing the  likelihood of chemotherapy-induced   nausea  and




@Christopher Howes 2020.
* The author is a J.D. Candidate, 2020, University of Maryland Francis King Carey School of Law. I would like to
thank the editors and staff on the Journal of Business and Technology Law, specifically Kevin Redden, Samuel
Schwartz, Samuel Kava, Cymone Gosnell, and Elizabeth McClellan for their insightful feedback and suggestions
throughout the writing process. I would also like to thank the many professors of the Intellectual Property
Law program at University of Maryland Francis King Carey School of Law for constructing an excellent
program, especially Professor Patricia Campbell. Finally, I would like to thank my parents, Chris and Debbie
Howes, and the rest of my family and friends for all their support.
   1. Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct. 628 (2019).
   2. Id. at 629.
   3. See infro Section V.A.
   4. See infro Section VB.
   5. See infro Section IV.C.


Journal  of Business   & Technology Law Proxy


1

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