Patent Deemed to “Issue” as of 12:01 am EDT In an issue of first impression, a district court has held that a patent “issues” as of 12:01 am on the day of issuance even if the Patent Office website does not list the patent as issuing until later that day. Encore Wire Corp. v. Southwire Co., No. 3:10-cv-86-BMGL, 2011 WL 833220, *4 (N.D. Ga. Mar. 4, 2011); Cerro Wire Inc. v. Southwire Co., No. 3:10-CV-87-BMGL, 2011 WL 833224 (N.D. Ga. Mar. 4, 2011) (same holding). In the two Southwire cases, the district court faced a first-to-file dispute where the declaratory judgment plaintiffs filed their actions at 12:02 am and 12:07 am EDT on the day that the patent issued, and the patentee filed its own actions at 12:10 am CDT (i.e., 1:10 am EDT). In an effort to defeat the first-filed status of the declaratory judgment actions, the patentee argued that because the PTO did not post the patent on its website of issued patents until about 12:30 am EDT, the declaratory judgment actions had been filed before the patent had issued, and therefore they lacked subject matter jurisdiction. Concluding that the statutes and regulations were silent on the specific issue of what precise time a patent should be deemed to have “issued,” the court accepted the declaratory judgment plaintiffs’ policy arguments that a rule treating all patents as having issued at 12:01 am EDT on the date of issuance best serves the patent law. Accordingly, the court found the declaratory judgment actions to be the first-filed action. Although not referring to it, the district court’s analysis seems supportable by the Supreme Court’s rationale in Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390 (1926). There the Court held that disclosures in a U.S. patent become prior art as of the filing date of the application, rather than its issued date, so that the applicant cannot profit from the delays of the PTO. In an instruction that seems applicable to determining the “issue” time of a patent, the Court instructed in Milburn that “the delays of the patent office ought not to cut down the effect of what has been done.” Id. at 401. Accord Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 255-56 (1965) (following Milburn).

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