The U.S. Patent and Trademark Office (USPTO) has announced that its “After Final Consideration Pilot Program 2.0” (“AFCP 2.0”) will come to an end on December 14, 2024. First rolled out in 2013, the program was part of USPTO efforts to reduce the need for Requests For Continued Examination (RCE) by providing an opportunity to obtain consideration of narrowing claim amendments after a “final” Office Action, possibly resulting in allowance and grant of a patent. Because the program does not require an additional fee, it has been a popular option, even if not always completely successful.
According to the USPTO announcement, therein lies the problem. The USPTO reports that since 2016, more than 60,000 AFCP 2.0 requests have been filed per year. The USPTO estimates that, for fiscal year 2022 alone, the USPTO expended more than US$15 million in “costs associated with examiners considering the merits of AFCP 2.0 submissions.” The USPTO sought to recoup some of these costs in its proposed fee changes for 2025, but public comments on the proposed fees revealed that “the public is not widely receptive to paying a fee to participate in the AFCP 2.0.” Thus, the USPTO has decided to terminate the program and will not accept AFCP 2.0 requests filed after December 14, 2024.
In announcing the end of AFCP 2.0, the USPTO reminds applicants of other options available after a “final” Office Action, including:
- Presenting amendments that will place the application in condition for allowance or in better form for appeal under 37 CFR § 1.116
- Requesting an interview with the examiner
- Filing a Notice of Appeal with a Request for Pre-Appeal Brief Review
However, the original impetus for AFCP 2.0 and its popularity may indicate that applicants had even less success with these limited options.
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