Patent Law Practice Center

Federal Circuit to consider On Sale Bar en banc

On November 13, 2015, the United States Court of Appeals for the Federal Circuit decided to take a case en banc that will require the court to resolve issues relating to the on-sale bar of pre-AIA 35 U.S.C. § 102(b).

The case is The Medicines Company v. Hospira, Inc., which was decided by Judges Dyk, Wallach, and Hughes on July 2, 2015. The original panel decision, which was authored by Judge Hughes, has been vacated and the appeal reinstated.

The Medicines Company filed a combined petition for panel rehearing and rehearing en banc. The petition was considered by the panel that heard the appeal and thereafter referred to those judges on the full court who are in regular active service (i.e., judges on senior status who did not participate in the panel hearing do not participate in en banc petitions). A response was invited by the court and filed by defendant/cross-appellant Hospira, Inc.

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