Earlier today the United States Patent and Trademark Office (USPTO) announced that the After Final Consideration Pilot Program 2.0 (AFCP 2.0) would be extended until September 30, 2019. The decision to extend this popular and sensible program comes as no shock.
The goal of the 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.
AFCP 2.0 began on May 19, 2013 and was originally scheduled to run through September 30, 2013. It evolved from the After Final Consideration Pilot (AFCP), which started in 2012.
The purpose of the AFCP 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.
Applicants who wish to participate in AFCP 2.0 must file a response under 37 CFR §1.116 together with a request for consideration under AFCP 2.0. The response after final rejection must include an amendment to at least one independent claim, and the amendment cannot broaden the scope of the independent claim in any aspect. The examiner will be allotted a set amount of time under AFCP 2.0 to consider the response, and to conduct a search if necessary. 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.
The Office is encouraging applicants who believe a response to a final rejection under 37 CFR 1.116 will lead to allowance with only limited further searching and/or consideration by the examiner to consider requesting consideration of the response under the AFCP 2.0 pilot program.
Updated Oct. 4 at 9:50am to reflect that the program has been extended through September 30, 2019, instead of September 20, 2019 (which was a typo in the earlier version).
Image Source: Gene Quinn.