Today in The Medicines Co. v. Hospira, Inc., __ F.3d __(Fed. Cir. July 11, 2016)(O’Malley, J.)(en banc), a unanimous twelve member Federal Circuit ruled on whether a supply agreement created an “on sale” bar under 35 USC § 102(b):
“We hold today that a contract manufacturer’s sale to the inventor of manufacturing services where neither title to the embodiments nor the right to market the same passes to the supplier does not constitute an invalidating sale under § 102(b). We, therefore, affirm the district court’s holding that the transactions between Ben Venue and MedCo did not trigger the on-sale bar.”
The opinion provides a tour de force exposition of the law relating to the “on sale” bar with a detailed analysis of historical precedent dating back to the early nineteenth century.