Only Mostly Dead: Pre-Issuance Patent Expiration

The defendants in a recent case in the United States District Court for the Eastern District of Texas argued that one of the patents in suit had died before it ever lived. According to the defendants, the patent expired not only before the case was filed, but before it was even issued, and thus it had no enforceable term. They asked the court to dismiss the allegations of infringement of that patent.

Can a patent expire before it issues?

Yes. It is not a common situation, but if a patent is issued more than 20 years after the earliest filing date to which it claims priority, and there is no term extension long enough to make up the difference, then the patent is dead on arrival.