The Federal Circuit has granted a petition for en banc rehearing in The Medicines Co. v. Hospira and requested briefing on the following questions: (a) Do the circumstances presented here constitute a commercial sale under the on-sale bar of 35 U.S.C. § 102(b)? (i) Was there a sale for the purposes of § 102(b) despite the absence of a transfer of title? (ii) Was the sale commercial in nature for the purposes of § 102(b) or an experimental use? (b) Should this court overrule or revise the principle in Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353 (Fed. Cir. 2001), that there is no “supplier exception” to the on-sale bar of 35 U.S.C. § 102(b)? En banc Order. In the original opinion, penned by Judge Hughes and joined by Judges Dyk and Wallach, the Federal Circuit reversed a district validity determination — holding on appeal that the “district court clearly erred in finding that the bivalirudin batches prepared by…
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