When a Final Office Action is issued during prosecution of a patent application, an applicant may file a Response in hopes of convincing the Examiner to find some of the pending claims (or slightly amended claims) patentable in the current round of prosecution. Even if an Examiner is convinced by the arguments/amendments set forth in an applicant’s Response to Final Office Action, the Examiner may be disincentivized from issuing a Notice of Allowance in the present round of prosecution. Examiner performance is measured in part by his/her “count” – that is, an Examiner receives credit for each action issued and RCE filed. By denying arguments/amendments set forth in an applicant’s Response to Final Office Action, the Examiner encourages the applicant to file an RCE, thereby upping his/her count.

Recognizing this as an issue, the USPTO instituted the After Final Consideration Pilot program (AFCP), which essentially provides credit to examiners for considering after-final Responses. The program evolved into AFCP 2.0 and is part of the USPTO’s on-going efforts towards compact prosecution and increased collaboration between examiners and stakeholders. This program was scheduled to terminate December 14, 2013, but has been extended to September 30, 2014. This is good news for patent applicants facing Final Rejection.

The announcement sets forth the following specifics, and encourages requesting an interview with the Examiner:

To be eligible for consideration under AFCP 2.0, you must file a response under 37 CFR §1.116, which includes a request for consideration under the pilot (Form PTO/SB/434) and an amendment to at least one independent claim that does not broaden the scope of the independent claim in any aspect. Please see the notice published in the Federal Register at 78 Fed. Reg. 29117 for a complete description of how to request consideration under AFCP 2.0. As was the case with the AFCP, examiners will continue to use their professional judgment to decide whether the response can be fully considered under AFCP 2.0. This will include determining whether any additional search is required and can be completed within the allotted time, in order to determine whether the application can be allowed.

Sources: http://www.uspto.gov/patents/init_events/afcp.jsp http://www.patentlyo.com/patent/2013/12/after-final-consideration-pilot-afcp-extended.html

For more information on this topic, please visit our Patent Protection service page.

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