After Final Consideration Pilot (AFCP) Extended

The USPTO has extended the After Final Consideration Pilot 2.0 (AFCP 2.0) program that basically gives examiners credit for considering responses filed after a final rejection.

To be eligible for consideration under AFCP 2.0, you must file a response under 37 CFR ยง1.116, 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. . . . 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.

The program was scheduled to end on December 14, 2013, but has been extended until September 30, 2014.

16 thoughts on “After Final Consideration Pilot (AFCP) Extended

  1. I’m filing my first one today. The examiner hand waved at 5 dependent claims. I’m amending the independent claim to add all 5 dependents. I guess technically that requires “further consideration” as they weren’t previously recited in combination, but given the total short shrift the dependents received during examination (e.g. “obvious absent unexpected results” lulz, my favorite examiner display of ignorance) I can’t imagine what “further consideration” I would receive if I just went ahead and filed an RCE. So I’m not going to waste the time or money going that route. If the examiner won’t enter the amendment I’ll just appeal and get the rejections against the individual dependent claims reversed.

  2. A tiny bit of credit, which no examiner I’m aware of is all that interested in. I’m practically the only one I know of that doesn’t want to decline them every time. And why should they? They know 99% of those cases would otherwise go to RCE which equals money in their pocket or time with their fam/at home.

    1. Every AFCP request I’ve filed so far has been declined, and they have all been asked for by the clients. I understand their desire to avoid RCE fees, but it was already possible to file after final amendments that could be entered without an RCE, and the criteria for entry have not been expanded one iota. Very few were entered before, and the tiny amount of time allowed to the Examiners under AFCP is not much incentive to enter more of them.

        1. I wouldn’t be surprised if I’m the only examiner in the whole office who actually allows for them. Excepting maybe a few people that don’t understand the program well enough to decline.

    2. Specifically, it’s 3 hours of non-production time, which isn’t much credit at all, compared to an RCE. But there’s no downside to filing your after-final amendments with an AFCP 2.0 request as long as your proposed amendment qualifies under the program.

    3. Therein lie the blame (remnants of the RCE gravytrain)You are missing the point 6.You get what you measure and if you set the measurements on the wrong thing, you will ALWAYS get the wrong thing.

      1. You never will get it through your head that the RCE gravytrain is what floats the count system will you? You can’t screw with the one without screwing with the other.

      2. You never will get it through your head that the RCE gravytrain is what floats the count system will you? You can’t scr ew with the one without scr ewing with the other, or else you may as well have just slashed hours per bd. The effect on the corps is the same.

        1. “Floating the count system” IS wherein the blame lies 6.You are such the bureaucrat.You will never get it through your head that you get the behavior you measure and reward, will you? The widget mentality must be ended.

          1. Here’s the thing anon, that you don’t seem to understand, nobody here IN POWER wants to rock the boat a huge amount, not even David K. And if you ever got that power I doubt you would either. To be clear, I agree whole heartedly that the count system is “the” problem, and “a problem”. “You will never get it through your head that you get the behavior you measure and reward, will you? The widget mentality must be ended.”Ok, fine, what system shall we put in place of the count system? I’m all ears. Really I am, I’m trying to think up viable solutions myself.

            1. I have more than once explained the system changes I would put in place 6.A short recap would be to have a two step evaluation by the best and most knowledgeable examiners ranking applications for difficulty and then allotting a mix of differently ranked applications to examiners who have proven their abilities. Time allowed would be geared to application difficulty – NO MORE WIDGETS – and far less gamesmanship.And 6 – you are quite WRONG on the ‘want’ of rocking the boat; rather, it is a matter of challenging the union.

            2. Oh, I forgot. Sorry, maybe you should make a webpage specifically for them. “And 6 – you are quite WRONG on the ‘want’ of rocking the boat; rather, it is a matter of challenging the union.”Well if you could put your system in place with minimal effect on how many people all of a sudden fail out then I doubt the union could never be convinced. Though here’s the thing, I suspect that you wish to specifically implement it to fail people out. We already fire more people than nearly any other government organization. That’s bound to look a bit odd at the upper echelons of gov. In any event, I don’t see how doling out applications with x amount of hours assigned by an “expert” examiner would magically help the situation regarding AF’s or the RCE gravytrain which was, I thought, the point of our little discussion today.

    4. Not that I agree with 6′s action, but they are to be expected.However, this does raise a good point about any new rule/law, which is that they are intended to change behavior. However, unless well thought out, they will not. In this instance, there isn’t enough incentive for an Examiner to consider an after-final amendment.As to the proposed laws to somehow curb “trolling,” while perhaps well intentioned, most of them are not well thought out. The laws may change the behavior of NPEs, they will not substantively impair NPEs from monetizing their patents. The behavior will be changed to ensure that the entities under which the patents are enforced fall under whatever safe harbor introduced by these new laws.Disclaimer — I have only tried one (after an examiner urging me to amend the claims to overcome the prior art and giving me a suggested amendment to do so — this was within the final office action). I put that amendment in a after-final amendment and she declined to enter it. Nice ….

      1. ” I put that amendment in a after-final amendment and she declined to enter it. “That’s some kind of odd right there. If you wanted to make a stink about it you could prob get the spe to get her to reopen. Gotta watch out for the newbies especially. “Not that I agree with 6′s action, but they are to be expected.You don’t agree with my accepting AFCP submissions? Because to be clear, I’m the only one that I know that will even do it unless strong armed, and I do it.

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