TAKEAWAY: The USPTO’s After Final Consideration Pilot Program 2.0 is coming to an end, and the last day to submit a request to participate in the program is December 14, 2024.
The USPTO has announced that the After Final Consideration Pilot Program 2.0 (AFCP 2.0) is set to expire on December 14, 2024, and that requests to participate in the program filed after this date will not be accepted. The program was designed to reduce the pendency of U.S. patent applications by decreasing the number of Requests for Continued Examination (RCEs) filed by applicants. AFCP 2.0 also seeks to enhance collaboration between an examiner and applicant to advance prosecution of an application.
Under the program, applicants submit at least one non-broadening claim amendment in a response to final rejection for review by an examiner without requiring an RCE and payment of the accompanying fee. Further, an examiner is allotted additional time to search for prior art and/or consider the response submitted by the applicant to determine whether the response places the application in condition for allowance. If the examiner determines that the response does not place the application in condition for allowance, the examiner will contact the applicant to schedule an interview to discuss their findings.
To request consideration under AFCP 2.0, an applicant must submit at least the following items, which are detailed in the AFCP Request Form (PTO/SB/434):
- a response to a final rejection, including a non-broadening amendment to at least one independent claim
- a statement that the applicant is willing and available to participate in an interview with the examiner regarding the response
Once the program expires, applicants will still have a number of options for consideration after final rejection. For example, an applicant may submit a response that includes proposed claim amendments that place the application in condition for allowance or in better form for appeal. An examiner may grant an interview with the applicant to advance prosecution. Further, the applicant may file a notice of appeal, optionally with a request for a pre-appeal brief review which, if granted, would enable the applicant to have a panel decide if an issue for appeal is actually present in the record.
Further information regarding termination of AFCP 2.0 is available at the Federal Register’s website.