Federal Circuit has yet to rule on whether same day filing meets copending requirement

In the recent case Encyclopaedia Britannica v. Alpine Electronics of America (2009-1544), the Federal Circuit held that each application in a chain of priority must contain a specific reference to all of the prior applications. The PTO already takes this position (see MPEP 201.11), and I didn't realize that this was an open issue as far as the courts are concerned.

Another open issue was mentioned in the last paragraph of Encyclopaedia Britannica:

We therefore leave for another day whether filing a continuation on the day the parent issues results in applications that are co-pending as required by the statute.

The PTO considers same day filing good enough. (See MPEP 201.11.) And once again I was surprised to find the Federal Circuit hasn't ruled on this particular issue yet.

According to this post on the 717 Madison Place blog, a district court has ruled on the issue of same day filings and copendency. In Moaec, Inc. v. MusicIP Corp. et al., 568 F. Supp. 2d 978 (W.D. Wis. 2008), the court interpreted § 120 and held that same day filing does meet the statutory requirements of copendency.