  United States Court of Appeals
      for the Federal Circuit
                 ______________________

            IMMERSION CORPORATION,
                Plaintiff-Appellant

                            v.

    HTC CORPORATION, HTC AMERICA, INC.,
             Defendants-Appellees
            ______________________

                       2015-1574
                 ______________________

    Appeal from the United States District Court for the
District of Delaware in No. 1:12-cv-00259-TBD, Judge
Richard G. Andrews & Circuit Judge Timothy B. Dyk (by
designation).
                ______________________

                 Decided: June 21, 2016
                 ______________________

    JOSEPH R. PALMORE, Morrison & Foerster LLP, Wash-
ington, DC, argued for plaintiff-appellant. Also represent-
ed by MARC A. HEARRON, BRYAN LEITCH; HAROLD J.
MCELHINNY, San Francisco, CA; MARC DAVID PETERS,
BRYAN J. WILSON, Palo Alto, CA.

   DAN L. BAGATELL, Perkins Coie LLP, Phoenix, AZ, ar-
gued for defendants-appellees. Also represented by RYAN
J. MCBRAYER, ERIC MILLER, Seattle, WA; JOHN PETER
SCHNURER, San Diego, CA.
2                IMMERSION CORPORATION   v. HTC CORPORATION



    BENJAMIN M. SHULTZ, Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC,
argued for amicus curiae United States. Also represented
by BENJAMIN C. MIZER, CHARLES M. OBERLY, III, MARK R.
FREEMAN; THOMAS W. KRAUSE, WILLIAM LAMARCA,
FARHEENA YASMEEN RASHEED, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA.

    GEORGE FRANK PAPPAS, Covington & Burling LLP,
Washington, DC, for amicus curiae Intellectual Property
Owners Association. Also represented by PAUL BERMAN,
JOHN ARTHUR KELLY, RANGANATH SUDARSHAN; HERBERT
CLARE WAMSLEY, JR., Intellectual Property Owners Asso-
ciation, Washington, DC; PHILIP STATON JOHNSON, John-
son & Johnson, New Brunswick, NJ; KEVIN H. RHODES,
3M Innovative Properties Company, St. Paul, MN.
                ______________________

    Before PROST, Chief Judge, LINN and TARANTO, Circuit
                          Judges.
TARANTO, Circuit Judge.
    This case involves one necessary condition, under 35
U.S.C. § 120, for treating a patent application, filed as a
continuation of an earlier application, as having the
earlier application’s filing date, not its own filing date.
That timing benefit shrinks the universe of “prior” art for
determining validity. The condition at issue, as relevant
here, is that the continuation application be “filed before
the patenting” of the earlier application. The question is
whether, for that condition to be met, the continuing
application has to be filed at least one day before the
earlier application is patented, or whether an application
may be “filed before the patenting” of the earlier applica-
tion when both legal acts, filing and patenting, occur on
the same day.
IMMERSION CORPORATION   v. HTC CORPORATION               3



    We adopt the latter position. The statutory language
does not compel, though it certainly could support, adop-
tion of a day as the unit of time for deciding if filing is
“before” patenting. And history is decisive in permitting
the same-day-continuation result, under which, using
units of time of less than a day, a “filing” is deemed to
occur before “patenting.” The Supreme Court approved
same-day continuations in 1863, and the 1952 Patent Act,
which introduced section 120, was broadly a codification
of existing continuation practices. And same-day contin-
uations have been approved by a consistent, clearly
articulated agency practice going back at least half a
century, which has plausibly engendered large-scale
reliance and which reflects the agency’s procedural au-
thority to define when the legal acts of “filing” and “pa-
tenting” will be deemed to occur, relative to each other,
during a day.
   We reverse the district court’s contrary holding and
remand. Immersion Corp. v. HTC Corp., No. 1:12-cv-
00259, 2015 WL 627425 (D. Del. Feb. 11, 2015).
                      BACKGROUND
    On January 19, 2000, Immersion Corporation filed
with the United States Patent and Trademark Office a
patent application disclosing a mechanism for providing
haptic feedback to users of electronic devices. On August
6, 2002, that application issued as U.S. Patent No.
6,429,846. Meanwhile, Immersion had filed International
Application No. PCT/US01/01486, and that application
was published as WO 01/54109 on July 26, 2001. The
written description of the WO ’109 publication is materi-
ally identical to that of the ’846 patent. Under 35 U.S.C.
§ 102(b) (2006), the WO ’109 publication became invali-
dating as to claims to subject matter disclosed in that
4               IMMERSION CORPORATION    v. HTC CORPORATION



publication unless those claims were entitled to an effec-
tive filing date before July 26, 2002. 1
    Beginning in August 2002, i.e., after the July 2002
date, Immersion filed in the United States a series of
applications that similarly shared the written description
of the ’846 patent and for which Immersion asserted an
entitlement to an effective filing date of January 19, 2000,
the filing date of the ’846 patent’s application. Immersion
invoked 35 U.S.C. § 120, under which, as relevant here,
“[a]n application for patent for an invention [that is]
disclosed” adequately (as specified in certain portions of
35 U.S.C. § 112)
    in an application previously filed in the United
    States . . . shall have the same effect, as to such
    invention, as though filed on the date of the prior
    application, if filed before the patenting or aban-
    donment of or termination of proceedings on the
    first application or on an application similarly en-
    titled to the benefit of the filing date of the first
    application.
35 U.S.C. § 120. It is not disputed here that section 120
allows multiple links of such “continuation” applications
in a chain leading back to an earlier application as long as
each link meets the section’s requirements.
    Here, one link is contested. Immersion filed an appli-
cation—which eventually matured into U.S. Patent No.


    1   The parties in this case have relied on the version
of § 102(b) that was in effect before the America Invents
Act amendments to § 102 took effect. See Leahy–Smith
America Invents Act, Pub. L. No. 112-29, §§ 3(b), 3(n)(1),
125 Stat. 284, 285–87, 293 (2011). Section 120 also was
amended in 2011 and 2012, but the language at issue
here, quoted infra, was not changed. Accordingly, we
refer simply to 35 U.S.C. § 120 without giving a date.
IMMERSION CORPORATION   v. HTC CORPORATION                5



7,148,875—on August 6, 2002, the same day that the ’846
patent issued. The present dispute is whether the ’875
patent’s application was “filed before the patenting” of the
’846 patent’s application and hence is entitled to the 2000
filing date of the ’846 patent. No other requirement of
section 120, e.g., an adequate disclosure, is in dispute.
    Later links in the relevant chain are not contested
here. Immersion filed additional applications that the
parties accept as direct or indirect continuations properly
tracing back to the ’875 patent’s application, each filed at
least one day before its predecessor application was
patented (or, in one instance, abandoned). See HTC Br. at
5 (patent family tree). That process led to the three
patents at issue in this appeal, U.S. Patent Nos.
7,982,720, 8,031,181, and 8,059,105, all of which share a
written description with the WO ’109 publication.
    In early 2012, Immersion sued HTC Corp. and HTC
America, Inc. (collectively, HTC) for infringing the ’720,
’181, and ’105 patents (as well as two other patents no
longer at issue). HTC sought summary judgment that the
asserted patent claims are invalid under 35 U.S.C.
§ 102(b) (2006) because the WO ’109 publication of July
26, 2001, disclosed the subject matter of those claims.
The decisive issue was the priority date to which the
patents at issue are entitled based on the chain of appli-
cations tracing back to the ’846 patent—specifically,
whether the link between the ’875 patent’s application
and the ’846 patent’s application met section 120’s timing
requirement.
    The district court (Judge Andrews) held that the ’875
patent’s application was not “filed before the patenting” of
the ’846 patent’s application within the meaning of sec-
tion 120, because they were filed on the same day. The
correctness of that conclusion is the issue before us. It is
undisputed here that, if that conclusion is correct, the
patents at issue are not entitled to the ’846 patent’s
6               IMMERSION CORPORATION     v. HTC CORPORATION



application’s January 19, 2000 filing date, but only to a
filing date of August 6, 2002, the actual filing date of the
’875 patent’s application. It is likewise undisputed that
the consequence is that the patents are invalid because
the WO ’109 publication was published more than one
year before August 6, 2002. Immersion, 2015 WL 627425,
at *2–4.
    Immersion and HTC settled as to the other two pa-
tents at issue, as to which the district court (Judge Dyk),
in entering final judgment, dismissed Immersion’s claims
with prejudice. The final judgment also ruled in favor of
HTC as to the ’720, ’181, and ’105 patents, based solely on
the earlier summary judgment of those patents’ invalidi-
ty. Immersion appeals, challenging the district court’s
interpretation of section 120 as barring a second applica-
tion from receiving the filing date of a first application
(even if other section 120 requirements are met) when the
second application is filed on the same day that the first
one issues, not the day before or earlier. We have juris-
diction under 28 U.S.C. § 1295(a)(1) and review de novo
the district court’s interpretation of section 120. See
Belkin Int’l, Inc. v. Kappos, 696 F.3d 1379, 1381 (Fed. Cir.
2012).
                         DISCUSSION
    Section 120 provides, in relevant part:
    [a]n application for patent for an invention dis-
    closed . . . in an application previously filed in the
    United States . . . shall have the same effect, as to
    such invention, as though filed on the date of the
    prior application, if filed before the patenting or
    abandonment of or termination of proceedings on
    the first application or on an application similarly
    entitled to the benefit of the filing date of the first
    application.
IMMERSION CORPORATION    v. HTC CORPORATION                 7



35 U.S.C. § 120 (emphasis added). Section 120 was
included in the Patent Act of 1952, and the language
relevant here has remained materially unaltered since
then. See Act of July 19, 1952, Pub. L. No. 82-593, § 120,
66 Stat. 792, 800; Act of November 14, 1975, Pub. L. No.
94-131, § 9, 89 Stat. 685, 691–92; Patent Law Amend-
ments Act of 1984, Pub. L. No. 98-622, § 104(b), 98 Stat.
3383, 3384–85; Intellectual Property and Communica-
tions Omnibus Reform Act of 1999, Pub. L. No. 106-113,
App’x I, § 4503(b), 113 Stat. 1501, 1501A-563–64; Leahy–
Smith America Invents Act, Pub. L. No. 112-29, §§ 3(f),
15(b), 20(j)(1), 125 Stat. 284, 288, 328, 335 (2011); Patent
Law Treaties Implementation Act of 2012, Pub. L. No.
112-211, §§ 102(5), 202(3), 126 Stat. 1527, 1531, 1536.
    Section 120’s language does not by its terms answer
the question whether a later-filed application can claim
the same filing date as an earlier-filed application when
the later one is filed on the day of the earlier one’s patent-
ing. Section 120’s language requires that the later appli-
cation be “filed before the patenting” of the earlier. But
that language does not say that the unit of time is a day,
as opposed to some smaller unit. As far as that language
goes, filing can precede patenting on the same day.
     The central premise of HTC’s position—that neither
of two events on the same day can be “before” the other—
is that time under the section 120 language at issue must
be measured with a “date-level granularity,” i.e., in units
no smaller than a “day.” HTC Br. at 18–19; Oral Arg. at
21:44–23:00. HTC’s brief relies on that premise from the
very start, embedding the premise in its foundational
framing of the issue as whether “‘before’ a statutory
deadline means ‘before’ that date, not ‘on or before.’” HTC
Br. at 3; id. at 1 (“‘Before’ a statutory deadline means
before that date, not on or before that date.”). The formu-
lation presupposes the answer in referring to “date[s]”
and even in using the phrase “on or before”: “on a day” is
ordinary usage; “on a minute” or “on a moment” or “on a
8               IMMERSION CORPORATION    v. HTC CORPORATION



time” is not. And it is only on that presupposition that
the dichotomy between “before” and “on or before” is
forceful, as it has been precisely in cases involving day
(equivalently, date) language. See, e.g., United States v.
Locke, 471 U.S. 84, 90, 96 n.11 (1985); Burton v. Stevedor-
ing Servs. of Am., 196 F.3d 1070, 1073 (9th Cir. 1999);
Int’l Union, United Mine Workers of Am. v. Mine Safety &
Health Admin., 900 F.2d 384, 385 (D.C. Cir. 1990). But
that dichotomy is inapplicable, or at best question-
begging, where the statutory language, as with the phrase
at issue here, does not actually speak in terms of days or
dates. Here, quite simply, the language at issue, consid-
ered alone, does not resolve the crucial unit-of-time issue.
    We must therefore widen the lens to look beyond the
specific phrase at issue. That widening immediately
reveals how pervasively the Patent Act elsewhere, includ-
ing in other phrases within section 120, specifies time by
express reference to days, months, or years. See, e.g., 35
U.S.C. §§ 3(e)(1), 6(d), 21(a), 41(a)(8), 41(b)(2), 100(i),
111(a)(4), 115(f), 119(a), 120, 154(a)(2), 156(d)(5)(E), 183,
291(b), 321(c); 35 U.S.C. § 102(b) (2006); but cf. 35 U.S.C.
§ 156(d)(1) (other agency’s permission for marketing, if
transmitted after 4:30 p.m. Eastern time on a day, is
“deemed” given the next “business day”). But even apart
from other considerations, the significance of that fact for
the present issue is not unidirectional. The prevalence of
date-based usage elsewhere in the statute does not by
itself determine the meaning of a statutory phrase (like
the one at issue here) that does not refer to a unit of time:
differences in text often furnish a reason for differences in
meaning.
    To be sure, the usage elsewhere in the Act means that
the particular language of section 120 that is at issue here
can bear a day-as-unit meaning. That meaning might
even be the most natural one to adopt—the one that
would fit best with the statute as a whole—if the statute
were new and without history, whether pre-enactment or
IMMERSION CORPORATION    v. HTC CORPORATION                9



post-enactment. But that is not the posture in which the
question is presented. We cannot properly disregard the
history bearing on the interpretive question, and that
history, we think, is so weighty as to be determinative.
    Long before Congress enacted section 120 in the 1952
Act, the Supreme Court in Godfrey v. Eames, 68 U.S. (1
Wall.) 317 (1864), established the basis for same-day
continuations for priority-date purposes.       There, Mr.
Godfrey had withdrawn a previously filed patent applica-
tion and, on the same day, refiled his application with an
amended specification. Id. at 324. The Court held that “if
a party choose to withdraw his application for a patent . . .
intending at the time of such withdrawal to file a new
petition, and he accordingly do so, the two petitions are to
be considered as parts of the same transaction, and both
as constituting one continuous application, within the
meaning of the law.” Id. at 325–36. It adopted that
position for purposes of giving the earlier application’s
priority date to the successor application (where the two
were sufficiently related). And in the decades following
Godfrey, the Supreme Court, other federal courts, and the
Patent Office consistently followed Godfrey’s rule. See
Smith v. Goodyear Dental Vulcanite Co., 93 U.S. 486,
500–01 (1877); Badische Anilin & Soda Fabrik v. A.
Klipstein & Co., 125 F. 543, 554–55 (C.C.S.D.N.Y. 1903);
Ex parte Kruse, 133 O.G. 229 (Comm’r Pat. 1908); Ex
parte Miller, 305 O.G. 419, 419–20 (Comm’r Pat. 1922);
Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194
F. 421, 422 (3d Cir. 1912); In re Febrey, 135 F.2d 751,
754–56 (CCPA 1943); Harder v. Hayward, 150 F.2d 256,
258–60 (CCPA 1945). 2



    2   When the Patent Office held that a later-filed ap-
plication could not claim the benefit of an earlier-filed
application’s filing date if the earlier application had
already been allowed (even if the patent had not issued),
10              IMMERSION CORPORATION   v. HTC CORPORATION



    The 1952 Act was the first to put continuation prac-
tice fully into statutory text, which it did through section
120. 3 The Senate report accompanying House Bill 7794,
82d Cong. (1952), describes section 120 as written to
“express in the statute certain matters which exist[ed] in
the law [up to that point] but which had not before been
written into the statute, and in so doing make some minor
changes in the concepts involved,” and also to “repre-
sent[ ] [then-]present law not expressed in the statute,
except for the added requirement that the first applica-
tion must be specifically mentioned in the second,” S. Rep.
No. 82-1979, at 6, 20 (1952); see also H.R. Rep. No. 82-
1923, at 7, 20 (1952) (same); Transco Prods. Inc. v. Per-
formance Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir.
1994). Accordingly, “the practice prior to the 1952 Act is
pertinent.” In re Henriksen, 399 F.2d 253, 258 (CCPA
1968). None of the legislative history or contemporaneous
commentary indicates an intent to alter Godfrey’s long-
established result approving same-day continuations for
priority-date purposes. And adjudicatory reliance on
Godfrey continued after 1952. Ex parte Ziherl & Kish,
116 U.S.P.Q. 162, 166 (Pat. Off. Bd. App. 1957); Hovlid v.
Asari, 305 F.2d 747, 748 (9th Cir. 1962); Clover Club
Foods Co. v. Gottschalk, 178 U.S.P.Q. 505, 506–07 (C.D.
Cal. 1973).




see In re Application filed April 17, 1940, 51 U.S.P.Q. 80
(Comm’r Pat. 1941); In re Application filed July 10, 1940,
49 U.S.P.Q. 566 (Comm’r Pat. 1941), our predecessor
court rejected that position, see Harder, 150 F.2d at 258–
60; In re Febrey, 135 F.2d at 754–56.
    3   An issue involving the filing of a new application
by an applicant that had failed to pay a fee after allow-
ance was addressed for a time in R.S. § 4897, which was
repealed in 1939. See In re Febrey, 135 F.2d at 753–57.
IMMERSION CORPORATION    v. HTC CORPORATION                 11



    Soon after the 1952 Act’s enactment, the PTO prom-
ulgated 37 C.F.R. § 1.78(a) (1960), stating that “the bene-
fit of the filing date of [a] prior application” can be
obtained when “an applicant files an application claiming
an invention disclosed in a prior filed copending applica-
tion.” (Emphasis added.) That word on its face would
naturally include, not exclude, the same-day situation,
and in any event, the word’s prior usage makes that
understanding clear. “Copending” had regularly been
used in the field to describe the relationship between an
earlier-filed application and its later-filed continuation,
often with reference to Godfrey, which involved the same-
day situation. See McBride v. Teeple, 109 F.2d 789, 797
(CCPA 1940); Febrey, 135 F.2d at 754–57; Baker v. Alther,
149 F.2d 942, 944 (CCPA 1945); Harder, 150 F.2d at 257;
In re Coleman, 189 F.2d 976, 978 (CCPA 1951); 2 Anthony
William Deller, Walker on Patents § 184, at 874 (1937);
P.J. Frederico, Commentary on the New Patent Act, 35
U.S.C.A. (1954), reprinted in 75 J. Pat. & Trademark Off.
Soc’y 161, 192–93 (1993); see also Lincoln B. Smith,
Continuing Applications, 10 J. Pat. Off. Soc’y 105, 107,
110 (1927) (describing “[t]he law as deduced from God-
frey” as “a later copending application . . . is a ‘continuing’
application . . . and [is] entitled to the filing date of the
earlier [application],” and listing 30 court and PTO deci-
sions applying Godfrey).
    Not surprisingly, then, the agency soon went beyond
the term “copending” (with its Godfrey-based meaning) to
be more explicit about the same-day situation. Although
an early edition of the Manual of Patent Examining
Procedure defined “copending” by simply echoing section
120’s language, MPEP § 201.11 (2d ed. 1953), every later
edition of the MPEP, beginning in 1961, specifically
notified the public of the agency practice concerning
same-day filing and patenting: “If the first application
issues as a patent, it is sufficient for the second applica-
tion to be copending with it if the second application is
12              IMMERSION CORPORATION     v. HTC CORPORATION



filed on the same day or before the patenting of the first
application.” MPEP § 201.11 (3d ed. 1961) (emphases
added). And even as 37 C.F.R. § 1.78 has been amended,
and the MPEP revised over the decades, the agency has
consistently maintained its clearly stated position for half
a century now. See 37 C.F.R. § 1.78(d) (2015) (“An appli-
cant in a nonprovisional application . . . may claim the
benefit of one or more prior-filed copending nonprovision-
al applications . . . under the conditions set forth in 35
U.S.C. § 120 . . . and this section.”) (emphasis added);
MPEP § 211.01(b) (9th ed. 2014) (“If the prior application
issues as a patent, it is sufficient for the later-filed appli-
cation to be copending with it if the later-filed application
is filed on the same date, or before the date that the patent
issues on the prior application.”) (emphases added).
    The Supreme Court has long recognized that a
“longstanding administrative construction,” at least one
on which reliance has been placed, provides a powerful
reason for interpreting a statute to support the construc-
tion. Zenith Radio Corp. v. United States, 437 U.S. 443,
457–58 (1978); see McLaren v. Fleischer, 256 U.S. 477, 481
(1921). The Court has emphasized the weight of this
consideration in patent law in particular.          Warner-
Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 32
(1997); see Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d
1336, 1347 (Fed. Cir. 2010) (en banc). Investment-backed
expectations and reliance interests in patent law are often
strong. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki
Co., 535 U.S. 722, 739 (2002); see Kimble v. Marvel
Entm’t, LLC, 135 S. Ct. 2401, 2410 (2015).
     Here, HTC’s position would disturb over 50 years of
public and agency reliance on the permissibility of same-
day continuations. Several patents claiming effective
filing dates in reliance on the PTO’s articulated position
have been the subject of litigation in the recent past. See
Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am.,
Inc., 609 F.3d 1345, 1349, 1352 (Fed. Cir. 2010); Ultratec,
IMMERSION CORPORATION   v. HTC CORPORATION              13



Inc. v. Sorensen Commc’ns, Inc., 45 F. Supp. 3d 881, 910
(W.D. Wis. 2014); MOAEC, Inc. v. MusicIP Corp., 568 F.
Supp. 2d 978, 980–82 (W.D. Wis. 2008); Merch. Techs.,
Inc. v. Telefonix, Inc., No. 05-CV-1195, 2007 WL 464710,
at *1 (D. Or. Feb. 7, 2007); A & E Prods. Grp., L.P. v.
Mainetti USA Inc., No. 01 Civ. 10820, 2004 WL 345841, at
*1 (S.D.N.Y. Feb. 25, 2004). As far as we are aware, until
this case, the only square rulings on the issue upheld the
same-day-continuation position (rulings issued in two
cases by the same judge). Ultratec, 45 F. Supp. 3d at 910;
MOAEC, 568 F. Supp. 2d at 980–82.
    Even as to patents currently in force, according to the
government’s calculations and studies commissioned by
amicus Intellectual Property Owners Association, over-
turning the PTO’s position would affect the priority dates
of more than ten thousand patents. U.S. Br. at 29–30;
Intellectual Property Owners Association Br. at 13–14.
For those and decades of earlier patents, it is plausible
that applicants relied on the policy approving same-day
continuations in at least two ways. First, in the PTO,
applicants have likely relied on the policy in deciding
when to file their continuations; the PTO provides notice
of the expected issuance date of the (soon-to-be) parent
application, U.S. Br. 30 n.5, and we are informed that
such notice is pretty reliable as to an earliest date of
issuance, see Oral Arg. at 11:57–12:42. Applicants’ reli-
ance on the PTO position in timing their filing of continu-
ations need not reflect the safest of lawyerly practices to
be given weight. Second, after such same-day continua-
tions issued as patents, the patentees plausibly made
investments based on assessments of validity using the
earlier priority dates. We see no basis for denying the
existence of a facially large disruptive effect were we now
to repudiate the same-day-continuation policy.
    In short, the repeated, consistent pre-1952 and post-
1952 judicial and agency interpretations, in this area of
evident public reliance, provide a powerful reason to read
14              IMMERSION CORPORATION    v. HTC CORPORATION



section 120 to preserve, not upset, the established posi-
tion. And the conclusion is reinforced by the fact that
Congress has done nothing to disapprove of this clearly
articulated position despite having amended section 120
several times since its first enactment in 1952. Sebelius
v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 827 (2013);
Commodity Futures Trading Comm’n v. Schor, 478 U.S.
833, 846 (1986); Nat’l Labor Relations Bd. v. Bell Aero-
space Co., 416 U.S. 267, 274–75 (1974).
    This is not a case, as we have explained, where the
language of the statute actually contradicts the
longstanding judicial and agency interpretation. Nor is it
a case in which the longstanding agency position is plain-
ly outside the agency’s granted authority. Here, the
position is an essentially procedural one establishing
when the agency will consider an input into its process
(the legal act of “filing”) and an output of its process (the
legal act of “patenting”) to occur relative to each other—
neither one being a precisely identifiable self-defining
physical act, but a legally defined event. Similar “deem-
ing” determinations in the federal courts, e.g., Fed. R.
App. P. 4(a)(2), 4(a)(7)(A)(ii), 25(a)(2)(A) & (B), have long
been treated as non-substantive, procedural matters
under the Rules Enabling Act, 28 U.S.C. § 2072. See
Hanna v. Plumer, 380 U.S. 460, 463–65 (1965) (methods
of serving process to initiate litigation). The PTO has
been granted authority to establish procedures that
organize its processing of requests to issue (or cancel)
patents, from entry to exit. See 35 U.S.C. § 2; Cooper
Techs. Co. v. Dudas, 536 F.3d 1330, 1336–38 (Fed. Cir.
2008); Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir.
2006); In re Sullivan, 362 F.3d 1324, 1328 (Fed. Cir.
2004); see also Tafas v. Doll, 559 F.3d 1345, 1352–53 (Fed.
Cir. 2009), vacated, 328 F. App’x 658 (Fed. Cir. 2009); id.
at 1365 (Bryson, J., concurring).
   Two final points. First, HTC makes no meaningful
argument for overturning the same-day-continuation
IMMERSION CORPORATION   v. HTC CORPORATION              15



practice independent of its argument that the section 120
phrase at issue must be read as using a “day” as the unit
of time for determining beforeness. Indeed, once we
conclude that the phrase permits consideration of whether
filing was before patenting within a single day, any
argument against same-day continuations runs into
insuperable difficulties, given Godfrey and the PTO’s
authority, supported by obvious practical considerations,
to declare when the events of “filing” and “patenting” are
deemed to occur within the same day. Second, we have no
occasion to address the questions that would arise if the
PTO now changed its longstanding policy on same-day
continuations.
                       CONCLUSION
   The judgment of the district court as to the ’720, ’181,
and ’105 patents is reversed and remanded.
            REVERSED AND REMANDED
