Unpatentability Under 35 U.S.C. § 101 Cannot be Determined Solely From Provisional Application​

The court denied defendants' motion for summary judgment on the ground that plaintiff’s oxygen system patent encompassed unpatentable subject matter because defendants relied on a provisional application to establish that the asserted claims were directed toward an abstract idea. "Much of Defendants’ Motion for Partial Summary Judgment is based upon the incorrect premise that this Court should only look to the provisional patent application to determine abstractness. As a fatal flaw, Defendants point to no legal basis for such a premise, and this Court has not independently identified any such basis. . . . [I]t would seem that Defendants concede that the patent was in fact not issued for an abstract idea but rather for 'a very specific system.'"

HVLPO2, LLC v. Oxygen Frog, LLC et al, 4-16-cv-00336 (FLND June 27, 2017, Order) (Walker, USDJ)