Last week the United States Patent and Trademark Office (USPTO) announced in the Federal Register that it would modify the After Final Consideration Pilot Program (AFCP) to create an After Final Consideration Pilot Program 2.0 (AFCP 2.0). The goal of AFCP 2.0 is much the same as it was when the USPTO initially introduced the precursor AFCP. According to the USPTO, the goal of AFCP 2.0 is to reduce pendency by reducing the number of RCEs and encouraging increased collaboration between the applicant and the examiner to effectively advance the prosecution of the application. Thus, this can and should be viewed as part of the USPTO effort to continue to try and address the RCE problem.
AFCP 2.0 began on May 19, 2013 and will run through September 30, 2013. The USPTO says that any request for participation in the program must be filed on or before September 30, 2013. Of course, as is always the case, the USPTO left open the possibility that the pilot would be extended beyond that date.
You may recall that the AFCP was initially created by the USPTO at the beginning of 2012. See New PTO Initiative Gives More Opportunity to Amend After Final. The purpose of the program was to attempt to move cases along without the need to file an Request for Continued Examination (RCE) when the case was very near to completion. Under AFCP the applicant could engage with the examiner beyond what is otherwise allowed under the rules if the examiner determined that the response filed could be fully considered within 3 hours for plant or utility application, or within 1 hour for design patent applications. See USPTO Memo to Examiners.
There are thus three main differences between AFCP and AFCP 2.0. These are:
- An applicant must request to participate in AFCP 2.0.
- A response after final rejection under AFCP 2.0 must include an amendment to at least one independent claim.
- The examiner will request an interview with the applicant to discuss a response, if the response did not result in a determination that all pending claims are in condition for allowance.
Applicants who wish to participate in AFCP 2.0 must file a request to have a response after final rejection, which the examiner may have sufficient basis not to consider under current practice, considered by the examiner without reopening prosecution. The response after final rejection must include an amendment to at least one independent claim. The examiner will be allotted a set amount of time under AFCP 2.0 to consider the response. If the examiner’s consideration of a proper AFCP 2.0 request and response does not result in a determination that all pending claims are in condition for allowance, the examiner will request an interview with the applicant to discuss the response.
There is no additional fee required to request consideration of an amendment after final rejection under AFCP 2.0, but any necessary existing fee, e.g., the fee for an extension of time, must still be paid.