Expiration of the After Final Consideration Pilot Program 2.0

Based on feedback from the public on the use of After Final Consideration Pilot Program 2.0 (AFCP 2.0) and hesitancy to accept the U.S. Patent and Trademark Office’s proposal for a new fee to participate in AFCP 2.0, the Office recently announced it will terminate the pilot program on December 15, 2024.

As an initiative to enhance communication between the Office and patent applicants and to streamline the patent prosecution process, AFCP 2.0 provides additional time for patent examiners to search and/or consider responses after final rejection at no cost to patent applicants. Under AFCP 2.0, the additional time allotted to patent examiners can also be used to schedule and conduct interviews with patent applicants to discuss the results of the examiner’s search and/or consideration, if the response does not place the application in condition for allowance.

However, as the pilot program approaches expiration, it is important to understand its potential implications for patent applicants and the broader patent prosecution landscape—which include the following:

• Potential for increased formality at final rejection. Without the additional time allotted to patent examiners to search and/or consider claim amendments and arguments made in responses after final under AFCP 2.0, patent applicants may find themselves navigating a more formal and potentially rigid patent prosecution process after receiving a final rejection. This could lead to an increase in Request for Continued Examination (RCE) submissions, increasing time and costs with the patent prosecution process.
• Increased vigilance in filing strategic responses. Without the additional time allotted to patent examiners to search and/or consider claim amendments and arguments made in responses after final under AFCP 2.0, patent applicants may need to adapt their prosecution strategies in responses to non-final rejections. For example, in their responses to non-final rejections, patent applicants may need to consider additional arguments and/or claim amendments to overcome rejections.
• Potential for backlog increase. The potential rise in RCE submissions (as noted above) could contribute to an already existing backlog of patent applications at the Office, thus impacting the timeline for applicants seeking patent protection on their innovations.

The expiration of AFCP 2.0 marks a potentially significant shift in how patent applicants will navigate the patent prosecution process following a final rejection. While potential challenges may arise with this transition, other options are still available to patent applicants at the final rejection stage of patent prosecution, such as filing an RCE and appeal. But, to avoid additional costs and/or delays, patent applicants are encouraged to consider the benefits conferred by AFCP 2.0, and if suitable, to take advantage of the program prior to its December 15th window closing.