After Final Consideration Pilot 2.0

From the PTO:

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 will launch 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 will be 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 ยง1.116, which includes a request for consideration under the pilot 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.

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, will terminate on May 18, 2013.

13 thoughts on “After Final Consideration Pilot 2.0

  1. What irks me is the requirement to amend an independent claim. It appears to me that this requirement is solely to provide a prosecution history estoppel against equivalents. I wonder if the “rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question” argument will be useful here. “I amended to meet the requirement of AFCP 2.0” sure sounds tangential to me.

  2. Les you’re thinking of the old program for incompetent people like yourself. For competent people the old program was like IANAE described.

  3. If you can make the 1.97(e) certification and pay the fee, you can get IDSes entered after final. Of course, it doesn’t make a difference if you haven’t claimed any allowable subject matter yet, because you’ll still have to file an RCE.

  4. Thank you for posting this. Oddly, it was also the EFS alert on Friday.

    I’m definitely a fan of anything that pushes Examiners to grant an interview After Final. But this doesn’t fix the IDS issue of getting references in a related case, which causes a significant percentage of RCEs in my practice.

  5. BRI is only half the problem. The other half is the cookie-cutter approach to obviousness. X teaches all limitations but one, and Y teaches that limitation, so it would be obvious to ‘combine the references’ but the examiner has no idea what the result of combining the references would be, exactly. It’s more of an abstraction; one of ordinary skill could figure it out, even if the examiner hasn’t thought it through. I’m mindful that ‘bodily incorporation isn’t the test’ but if you’re not suggesting literally ramming that extra feature into the primary reference, mind telling me what you are proposing so we can all have a good laugh and then get a declaration from someone that knows the art? If you’re not suggesting a bodily incorporation, well what then? Sometimes an interview is good for extracting that tidbit (which could have been expressed in a sentence in the OA), but often you just get back stammering about what the secondary reference teaches. That’s great, but in what way, specifically, would the primary reference be changed in view of that teaching? Go ahead, make any change you’d like – I won’t complain if it’s something other than bodily incorporation, just tell me what it is, please.

  6. Why don’t fix the system by simply allowing us to pay for the additional search, including the examiner’s time….

    This is a micro step in the right direction. It is what RCEs should be. But the very existence of the program implicitly acknowledges that compact prosecution is a theory only. Because of BRI, it really does not work in practice.

  7. But that’s not the old program. The old program is the Examiner doesn’t read the rewritten response and issues an advisory action maintaining the previous rejections.

  8. As an examiner, I have yet to hear about this. Why tell attorneys before the examiners? Wierd.

  9. there is no new program that give the Examiner time to consider that argument?

    No, you have to use the old program where you either phone the examiner or file a written response, and he withdraws the rejection and allows the case if he agrees with you.

  10. Once again, I love getting my training from Patently-O rather than from the PTO.

  11. So, If the Examiner is just wrong, and I so argue, there is no new program that give the Examiner time to consider that argument?

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