The U.S. Patent and Trademark Office (USPTO) is terminating the After Final Consideration Pilot Program 2.0 (AFCP 2.0), which provided examiners additional time to search and/or consider responses following final rejection of a patent application.
The USPTO will not accept any AFCP 2.0 requests after December 14.
The AFCP 2.0 program has served an important purpose the past several years. It allowed applicants to submit claim amendment(s) after issuance of a Final Office Action, but before filing a Request for Continued Examination (RCE), with the goal of reducing RCE filings.
Two major benefit of the AFCP 2.0 program:
- It allowed applicants potentially greater flexibility to present claim amendment(s) after a final rejection without additional fees.
- It allowed applicants to avoid loss of further accrual of PTA, which can result when filing an RCE.
The AFCP 2.0 program has been renewed each fiscal year since 2016, and applicants have filed more than 60,000 AFCP 2.0 requests annually. In April, 2024, the USPTO floated a proposal to assess a fee of $500 for the first time. Because of negative feedback from applicants, the USPTO decided to shut down the program instead.
Here are some approaches that applicants may consider in a post-AFCP 2.0 environment:
- File a response, with or without claim amendments, within two months of issuance of a Final Office Action. This typically results in issuance of an Advisory Action or a Notice of Allowance by the three-month due date.
- Request an Examiner interview shortly after issuance of the Final Office Action, preferably within the initial two-month period. Thereafter, file an appropriate response by the three-month due date.
- Prepare and file an Amendment and a Request for Continued Examination (RCE) by the three-month due date. However, the Amendment should include substantive claim amendments not previously considered, in order to avoid the possibility of issuance of an immediate Final Office Action.
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