On July 30, 2019, Chris Loh was quoted in Westlaw Journal Employment regarding the U.S. Supreme Court’s decision in Helsinn Healthcare SA v. Teva Pharmaceuticals USA Inc, et al. In a 9-0 opinion, the Court rejected Helsinn Healthcare SA's argument that a confidential deal the Swiss drugmaker made more than one year before it applied for patents for its Aloxi nausea treatment was not a sale that could qualify as prior art.
According to the article, the high Court said the sale triggered Section 102(a)(1) of the Patent Act, 35 U.S.C.A. § 102(a)(1), which bars a patent for an invention disclosed to the public for more than one year before the patent application is filed.
Helsinn had argued that the on-sale bar changed when the 2011 Leahy-Smith America Invents Act (AIA) added language to Section 102 that barred inventions ''otherwise available to the public,'' but the Supreme Court said the drugmakers placed ''too much weight'' on that change.
Loh said Justice Brett Kavanaugh foreshadowed the high Court’s decision at oral argument.
''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,'' he said. ''The Helsinn decision rests largely on that reasoning.''