Patent Office Extends After Final Consideration Pilot Program 2.0

By Gene Quinn
October 3, 2018

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.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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Discuss this

There are currently 9 Comments comments. Join the discussion.

  1. Ternary October 3, 2018 2:03 pm

    “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.”

    No, the Examiner in one of my cases did not, did not want to and did not feel like it. Like in many USPTO programs that promise to assist Inventors to advance prosecution or level the playing field, applicants will run into a wall of uncooperative and unwilling Examiners. You will have to contact the SPE and force the issue.

    For instance does anyone know of an Examiner who responds to the merits of an affidavit or objective evidence in an Office Action response? Is a logic gate an abstract idea? If must be, because no Examiner, SPE, or QA Examiner dares to touch the subject. Let the wise men of the PTAB decide.

    The whole examination process is operated like a fraud, wherein objective evidence and known subject manner are irrelevant or at least are arbitrary factors.

    As I said before, it is actually a relief when a rejection is based on verifiable evidence. AFCP 2.0 is merely another useless step in a predominantly irrational bureaucratic process and a step that seems to be despised and sabotaged by Examiners.

  2. Steve October 4, 2018 6:42 am

    It is actually extended through September 30, 2019 which is the end of the current fiscal year. (article says end date is Sep 20).

  3. xtian October 4, 2018 9:25 am

    I have a case that is ripe to try this. Let’s see what happens.

  4. Gene Quinn October 4, 2018 9:51 am

    Steve-

    Thank you for catching that typo. Article has been fixed and cache cleared. So error should push to all formats shortly.

    -Gene

  5. Eric Berend October 4, 2018 11:49 am

    The very existence of this program is a tacit admission by the USPTO that their own Examiner corps are majority counter-productive and hostile towards U.S. inventors and would-be patentees.

    With the thorough discouragement of a large portion of U.S. inventors who have abandoned any meaningful participation in the U.S. patent system, exactly ‘who’ is pumping up the current number of patent applications?

    That would undoubtedly by foreign owned entities, propping up the delusion that “all is well” in the U.S. patent space by the IP pirates, plunderers, collectivist “social justice warriors”, Justice Breyer (author of several ‘…inventors will invent for a few extra pizzas…’-type quotes) and the minions of China.

    And the peasants all cheered! At the derogation of the geniuses who made their world far more survivable and convenient for these ungrateful, antagonistic masses. But, delusions of social virtue and personal moral superiority clearly out-weigh any facts affecting their own economic futures, for those so widely besotted.

    I have warned others previously in this forum, and I re-iterate: “Get ready to call China, ‘Master’ “.

  6. Ronald Z October 5, 2018 12:14 pm

    I tried at least in 10 cases in the past, and I don’t think any Examiner has taken the program seriously, even though they said in an interview that the amendments overcome the rejections, after I filed AFCP, they all end up saying new search is needed.

    In a few cases when the amendments can pass, you don’t need this program. The examiner just allowed it.

    But one seeming advantage of this program is that if you do, they seem to be forced to respond very quickly, like within 10 days, as one examiner told me once. Other than that, I haven’t seen any advantage.

  7. BP October 5, 2018 7:43 pm

    Over the years, I believe I have requested over 100 AFCPs, with generally positive results: (i) allowance or (ii) better guidance for an RCE. It helps to ask before filing the AFCP whether the time will be enough and if the examiner pushes and says no, then I usually go for an RCE and briefly discuss the merits while having the examiner on the phone (direction of amendments, etc.). Examiners have time/production issues and respecting that can help build some goodwill. While I don’t have the exact numbers at hand, I would say that approximately 25% of the AFCPs result in allowance. Overall, AFCPs save RCE fees and at times you get an additional PTO-892 (more references cited/of record).

  8. Ternary October 5, 2018 11:57 pm

    “It helps to ask before filing the AFCP whether the time will be enough and if the examiner pushes and says no, then I usually go for an RCE…”

    That pretty much sums up the true value of the program.

  9. William D. October 9, 2018 4:28 pm

    Despite early promise, I have had mixed results. Recently two different Examiners refused to participate, saying that a search would take more time than allotted. When pressed, neither could explain how they knew that if they hadn’t even begun to search. Obviously just didn’t want to participate. Best suggestion from Ternary and others is to contact the Examiner before requesting AFCP.

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