Patent Lodge

On December 14, 2024, the window will seemingly shut forever on the After Final Consideration Pilot Program 2.0 (AFCP 2.0). As covered in our 2023 Patent Lodge, Winter Edition, this program had been launched in 2013, specifically to reduce Request for Continued Examination (RCE) filings. For those familiar with the U.S. patent process, filing an RCE is an option for the applicant after receiving a Final Office Action from the U.S. Patent and Trademark Office (USPTO). However, it is costly to file an RCE (for large entities, $1,360 for a first filing, and $2,000 for subsequent filings), and it extends prosecution on an already examined application. So why is the program being scuttled?

A variety of reasons are noted for the program’s termination. When speaking with my peers over the years, a common theme I heard expressed was the program’s effectiveness, or lack thereof. Particularly, while it was a possibility that an application could be allowed following a filing with AFCP 2.0 request, in my experience, that seemed more of the exception than the rule. As such, perhaps people’s expectations may have been overinflated from the start, which gave the program a bad reputation. However, with adjusted expectations, it seemed the AFCP 2.0 could be effectively used. For example, it promoted further consideration by the examiner as well as in most cases, a discussion with the examiner. Further, while an allowance may not have been a direct result, if carefully managed, the AFCP 2.0 could help foster agreement in some areas, paving a potential path toward allowance.

Notwithstanding the above, the prevailing reason being noted for the program’s termination is cost. Implementation of the program has been estimated near 15 million dollars annually. One advantage of the program has been that it required no fee. To that end, the USPTO considered continuation of the program, but for a fee for users. However, public reaction to the idea was lukewarm, and thus the premise was dismissed. Personally, it’s a bit disappointing to learn of the lackluster effort to keep the program alive. At least a trial period in which fees were introduced would have been nice to see.

Admittedly, I am a bit sad over the AFCP 2.0 ending. Yes, life will go on at the USPTO without the program; however, there will be one fewer option for applicants to consider in helping advance U.S. patent applications to allowance. It was easy to become fond of the AFCP option due to it being free and promoting collaboration with the USPTO. Nevertheless, we are evolving our strategies based on the program coming to an end. If you are facing a Final Office Action, please let us know and we will be happy to discuss ideas and strategies.