The U.S. Patent and Trademark Office (USPTO) recently announced that it will terminate the After Final Consideration Pilot Program (AFCP 2.0) and that December 14, 2024, will be the last date for applicants to submit requests under that program.1 This announcement (1) marks the end of a program that gave applicants a way to obtain guidance from an examiner after receiving a final rejection and (2) limits the number of options available to an applicant that receives a final rejection.
Under the AFCP 2.0, an applicant could submit an after-final submission, and the examiner was given some additional time to perform a search and consider whether that after-final submission placed the application in condition for allowance.2 The examiner could also use the additional time to conduct an interview with the applicant if the applicant's response did not place the claims in condition for allowance.3 Importantly, applicants were not charged a fee to participate in the AFCP 2.0.
Citing several million dollars in costs associated with time expended by examiners considering the merits of applicants' requests,4 the USPTO initially determined that it would not continue the AFCP 2.0 without collecting fees from applicants. When the USPTO solicited comments on fee-based participation in the AFCP 2.0, the public was not receptive to paying a fee, and the USPTO decided to terminate the AFCP 2.0.5
Without the AFCP 2.0 as an option, applicants can still respond to a final rejection in several ways. For example, after a final rejection is mailed and prosecution is closed, amendments filed by applicants subsequently after final rejection can be approved for entry if the amendments place the application in condition for allowance or in better form for appeal.6 Although the AFCP 2.0 emphasized examiner interviews, an examiner may still grant interviews outside the AFCP 2.0 if the examiner believes the interview will expedite issues for appeal or disposal of the application.7
Another after-final response option is the Pre-Appeal Brief Review Request and Conference Pilot Program, which allows applicants to file a submission that includes up to five pages of arguments,8 although a notice of appeal and the associated fee are required. Applicants can file a request for continued examination,9 which requires a fee.10 With the closure of the AFCP 2.0, an applicant who receives a final rejection will need to consider which of the remaining options is the best path forward.
Footnotes
1 https://www.federalregister.gov/documents/2024/10/01/2024-22481/extension-and-termination-of-the-after-final-consideration-pilot-program-20
2 https://www.uspto.gov/patents/initiatives/after-final-consideration-pilot-20
3 Id.
4 https://www.federalregister.gov/documents/2024/10/01/2024-22481/extension-and-termination-of-the-after-final-consideration-pilot-program-20
5 Id.
6 MPEP § 714.03
7 MPEP § 713.09
8 See MPEP § 1204.02
9 See MPEP § 706.07(h)
10 See 37 CFR § 1.17(e)
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