SCOTUS Patent Scorecard Update

On January 22, 2019, the Supreme Court issued Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. 

Helsinn holds that “an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential can qualify as prior art under [35 U.S.C.] §102(a).”   

Helsinn is patent neutral because it maintains the integrity of the patent bargain between an inventor and the U.S. government. 

Helsinn also underscores the importance of pragmatism for inventors: (1) think ahead, (2) treat any event or activity arguably constituting publication, public use, an offer for sale/being on sale, a sale or public availability to be just that, i.e., prior art, and (3) timely file the patent application.  

In the past 14 years, the Supreme Court has issued 36 patent decisions. The tally: 20 decisions are not pro-patent; 8 decisions are pro-patent; and 8 decisions are patent neutral.