In The Medicines Co. v. Hospira Inc., Appeal No. 2014-1469 (Fed. Cir. July 11, 2016), the Federal Circuit issued a unanimous en banc decision ruling that the on-sale bar was not triggered by a supplier’s sale of manufacturing services to an inventor largely because the title to the invention and the right to market the invention never passed from the inventor to the supplier.
BACKGROUND
The Medicines Company (MedCo) contracted with Ben Venue Laboratories (Ben Venue) to manufacture Angiomax, a drug product, which is covered by two of MedCo’s patents (U.S. Patent Nos. 7,582,727 and 7,598,343). Slip op. at 5. Before the critical date from which the on-sale bar of § 102(b) must be measured, MedCo paid Ben Venue a fee to manufacture three batches of product according to the patents-at-issue. Slip op. at 6-7. The batches were provided by Ben Venue and placed in quarantine with MedCo’s distributor, and only released and made available for sale after the critical on-sale bar date. Slip op. at 7-8.