Your company is excited to launch a new product—the feeling of anticipation is in the air! Just wait until your customers see it! But, have you done your homework? Will the first sale mark a great new era for your company? Or will it be the last nail in the proverbial coffin, eradicating potential intellectual property (IP) rights associated with the product and permitting competitors to capitalize on your hard work?

Numerous opportunities and pitfalls lay in wait along the path to launching a new product. Integrating IP into the design process from an early stage is critical. The U.S. Supreme Court recently clarified an issue relating to one of those pitfalls, namely the “first sale bar.” In Helsinn Healthcare v. Teva Pharmaceuticals USA, 586 U.S. ___ (2019), the court considered the issue of whether a commercial sale, even if kept confidential, can bar patentability. This decision provides a good opportunity to discuss IP considerations surrounding first sales and new product development, generally.