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On May 19, 2013, the USPTO unveiled its new After Final Consideration Pilot 2.0 (AFCP 2.0) slated to continue through September 30, 2013.  This new program follows its predecessor pilot, which ended on May 18, 2013.  The USPTO established the new program to continue efforts to compact prosecution and increase collaboration between examiners and stakeholders.

The AFCP 2.0 incentivizes examiners to consider responses after final rejection and conduct a search, if necessary, by authorizing additional non-production time to the examining corps. Although examiners still retain discretion to deny after-final responses that they feel require more time than offered by the AFCP 2.0, the pilot program offers efficiencies when the examiner determines that the response can be timely considered.  In such situations, applicants are provided with an examiner requested interview to discuss the results of the search and the proposed claim amendments, if the response did not result in a determination that the claims are in condition for allowance.  Even better, if the examiner deems the application in condition for allowance, applicants may avoid payment of a Request for Continued Examination (which can cost up to $1,700.00), and the examiner may issue a Notice of Allowance.

Eligibility for the AFCP 2.0 requires the applicant to electronically submit (1) a response under 37 C.F.R. § 1.116, (2) a Certification and Request for Consideration Under the After Final Consideration Pilot Program (Form PTO/SB/434), and (3) a statement that the applicant is willing and available to participate in an interview initiated by the examiner concerning the response.  In addition, the response must include an amendment to at least one independent claim that does not broaden the scope of the claim in any aspect.  There are no additional fees required for submitting such requests.

The AFCP 2.0 provides meaningful efficiencies to the examination process, at little cost to the applicant.  Applicants therefore are wise to consider filing requests under the pilot to advance prosecution and potentially reduce costs.

Jessica Winchester

May 23, 2013