The court denied defendant's motion to dismiss plaintiff's earlier-filed declaratory relief action for lack of subject matter jurisdiction where the declaratory relief action was filed on the day the patent issued, but before the PTO website reported such issuance. "Neither party has presented the Court with legal authority addressing this precise question, and the Court is aware of none. . . . Unlike the electronic filing systems utilized by federal courts, neither the PTO websites nor the patent itself displays the time a patent was issued. Without such concrete data, parties would have to rely on affidavits stating the time the PTO website first showed the patent had issued. Thus, it seems that under [defendant's] approach, the race to the courthouse would be preceded by a race to first observe a patent’s issuance on the PTO website. . . . [T]he Court is persuaded that [plaintiff's] approach is correct and holds that the [patent-in-suit] was issued just after 12:00 a.m. EDT on July 6, 2010, and thus [plaintiff's] Complaint was filed after the Patent issued."
Cerro Wire Inc. v. Southwire Company, 3-10-cv-00087 (GAND March 4, 2011, Order) (Camp, J.)