After Final Consideration Pilot 2.0
Using information gathered from the After Final Consideration Pilot (AFCP), as well as input from stakeholders and examiners obtained through the RCE outreach initiative, the USPTO launched the After Final Consideration Pilot 2.0 (AFCP 2.0) on May 19, 2013. Designed to be more efficient and effective than the AFCP, AFCP 2.0 is part of the USPTO’s on-going efforts towards compact prosecution and increased collaboration between examiners and stakeholders.
“Compact prosecution remains one of our top goals,” said Teresa Stanek Rea, Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the USPTO. “As with the original AFCP pilot, the new AFCP 2.0 pilot allows additional flexibility for applicants and examiners to work together and provides even greater opportunity for communication after final than the original pilot.”
Like AFCP, AFCP 2.0 authorizes additional time for examiners to search and/or consider responses after final rejection. Under AFCP 2.0, examiners will also use the additional time to schedule and conduct an interview to discuss the results of their search and/or consideration with you, if your response does not place the application in condition for allowance. In this way, you will benefit from the additional search and consideration afforded by the pilot, even when the results do not lead to allowance.
In addition, the procedure for obtaining consideration under AFCP 2.0 has been revised. The revised procedure focuses the pilot on review of proposed claim amendments and allows the USPTO to better evaluate the pilot.
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.
As always, the option to request an interview with the examiner, consistent with MPEP 713, is available to you irrespective of whether the submission was considered under AFCP 2.0.
If you are considering filing a response to a final rejection under 37 CFR 1.116 that you believe will lead to allowance of your application with only limited further searching and/or consideration by the examiner, you should consider requesting consideration of the response under AFCP 2.0.
Click here for the guidelines related to the consideration of responses under AFCP 2.0.
Form PTO/SB/434 may be used to request consideration under AFCP 2.0.
AFCP 2.0 is scheduled to run through September 30, 2013, i.e., any request to consider a response after final rejection under AFCP 2.0 must be filed on or after May 19, 2013, and on or before September 30, 2013. AFCP, which began on March 25, 2012, terminated on May 18, 2013.
You may email any question regarding AFCP 2.0 to the AFCP 2.0 mailbox.
Alternatively, you may telephone one of the following:
- for an EFS-Web or PAIR system question, contact the Electronic Business Center at 866-217-9197;
- for an application-specific issue with AFCP 2.0, contact Tariq Hafiz, Director, Technology Center 2600, at 571-272-4550; or
- for a question regarding the After Final Consideration Pilot Program 2.0 Federal Register notice, contact Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, at 571-272-7728.