Giving Meaning to “Otherwise Available to the Public”: How Helsinn Perpetuates a Version of the On-Sale Bar to Patentability that Disproportionately Burdens Small Inventors.

This Note argues that the Federal Circuit’s holding in Helsinn Healthcare v. Teva—that sales that are publicly known but that do not disclose the invention trigger the on-sale bar to patentability—perpetuates an interpretation o f the onsale bar that disproportionately burdens small inventors by limiting their ability to engage in pre-commercialization transactions with third parties. The addition of the language “otherwise available to the public” to 35 U.S.C. § 102 provided the Federal Circuit with the opportunity to narrow the on-sale bar to include only sales that make the invention publicly available, but the Federal Circuit did not apply such an interpretation in Helsinn. Furthermore, this Note argues that the interpretation o f the on-sale bar adhered to in Helsinn is undesirable as a matter of policy because it obstructs innovation by small firms and individuals. A narrow on-sale bar that does not cover pre-commercialization transactions would better serve to drive innovation. An exploration of the policy implications of the Federal Circuit’s decision is particularly timely since the Supreme Court granted Helsinn’s petition for a writ of certiorari on June 25, 2018. [ABSTRACT FROM AUTHOR]