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New After Final Consideration Pilot Program (AFCP 2.0)

September 30, 2013 – The USPTO recently announced an updated version of an earlier pilot program, seeking to find ways to reduce the number of Requests for Continued Examination (RCEs). From now until September 30, 2013 (the program may end, be extended or changed at that time), Applicants who receive a Final Rejection may file, for no extra charge, a Request for Consideration under this program, making certain certifications, in order to get additional consideration of an after-final amendment. This program is incentivized by providing the Examiner with up to 3 additional hours for considering an after-final response under this program. AFCP 2.0 provides the possibility (not guarantee) of another "bite at the apple" after a final rejection. The difference from a normal After Final reply is that the Examiners are theoretically more likely to consider significant claim amendments (even if not overly extensive new issues are raised) and are incentivized with extra time if they do so.

The important highlights:

  • AFCP can be used at any time after final rejection, although Applicant is required to pay for any necessary extensions of time; it can also be filed after the filing of a Notice of Appeal.

  • AFCP can be used after receipt of an Advisory Action, whether or not the first after-final response was entered.

  • However, only one request for AFCP may be filed per final rejection; therefore, consideration must be given whether to file a first attempt to respond to the final rejection to see if the Examiner will enter the amendment and to reserve the AFCP to address any remaining issues, or to offer the "gift" of three hours of AFCP time to the Examiner with the initial after-final response, up front, to encourage consideration.

  • Certification must be made that at least one independent claim is being amended such that the claim is not being broadened in any aspect. New claims or even broader claims can be added, but at least one independent claim must be amended and not broadened.

  • There is no guarantee that the Examiner will agree to the request, which is at the Examiner's discretion. The Examiner's decision is based on whether in the Examiner's opinion, the amendment does not necessitate additional search and/or consideration, or if the Examiner determines that additional search and/or consideration is required, it could be completed within the allotted time,

  • Applicant (or counsel for Applicant) must agree to be willing and available to participate in any interview requested by the Examiner concerning the response, within 10 days of the request for interview, if the Examiner accepts the request for consideration but does not find the response to put the application in condition for allowance. If the Examiner does not have signatory authority, his/her supervisor will be in attendance at the interview. If the interview is declined or cannot be scheduled, an Advisory Action would be issued (entry of the amendment is not guaranteed). Of course, if the Examiner requests the Interview, the costs will be increased.

It is preferable under this program to file a response with a request for AFCP consideration as soon as possible after final, to avoid extensions of time if the result is not allowance, but it is not necessary. The filing of a request for consideration under AFCP does not change Patent Term Adjustment (PTA) calculations; the response is treated as a normal after-final response, so if the Examiner does not allow the case, extensions of time to take further action (and thus loss of accrued PTA) are possible.

If you have any questions about this pilot program, please let us know.

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