On January 23, 2019, IPWatchdog.com featured remarks from Chris Loh about the Supreme Court's decision in Helsinn v. Teva, noting that the decision upholds pre-AIA Federal Circuit precedent establishing that a "secret sale" could invalidate a patent. Here is an excerpt:
The Supreme Court's Helsinn decision was foreshadowed by Justice Kavanaugh's comments at oral argument. There, Justice Kavanaugh observed that if Congress had intended for the AIA to alter pre-AIA precedent concerning the "on-sale" bar, Congress would have done so directly by changing the term "on sale" in the AIA, rather than by inserting a catchall "otherwise" clause into the statute. The Helsinn decision rests largely on that reasoning.
As was the case with the pre-AIA on-sale bar jurisprudence, the Helsinn decision puts patentees who depend on third-party distributors at a disadvantage relative to patentees who have the ability to distribute their patented products in-house.
Although the Helsinn decision doesn't directly address what happens when both the existence of the sale and the details of the item being sold are kept secret, the Supreme Court nevertheless made note of the fact that the Federal Circuit "has long held that 'secret sales' can invalidate a patent."