Thompson v. Hamilton Should Be Overruled!¹

By Charles L. Gholz² and Joell R. Hibshman³

INTRODUCTION

Pioneer Hi-Bred International, Inc. v. Monsanto Technology LLC, 671 F.3d 1324, 101 USPQ2d 1849 (Fed. Cir. 2012)(opinion by Senior Circuit Judge Clevenger for a panel that also consisted of Circuit Judges Prost and Reyna)(hereinafter referred to as “Pioneer”), held that “multiple pre-critical date claims, considered together, can provide the foundation necessary for post-critical date claims to be held timely [under 35 USC 135(b)(1)].”⁴ In support of that holding,⁵ Judge Clevenger cited Thompson v. Hamilton, 152 F.2d 994, 68 USPQ 161 (CCPA...