USPTO Terminates AFCP 2.0

The USPTO announced on September 30, 2024 termination of the After Final Consideration Pilot (AFCP) 2.0 Program on December 15, 2024.  The last day to file an AFCP 2.0 request is December 14, 2024.

The AFCP 2.0 Program was set to expire on September 30, 2024, so the USPTO provided a short extension of the AFCP 2.0 Program to December 15, 2024.

The AFCP 2.0 Program authorizes additional time for examiners to search and/or consider responses after final rejection, and to schedule and conduct an interview with the applicants to discuss the results of their search and/or consideration.  The AFCP 2.0 Program requires the applicants to certify that their “response includes an amendment to at least one independent claim, and the amendment does not broaden the scope of the independent claim in any aspect.”

In our experience, the AFCP 2.0 Program has been useful in expediting prosecution after a final rejection.

According to the USPTO, the high usage of the AFCP 2.0 contributed to significant costs in administering the program.  According to the USPTO Notice of October 1, 2024 (Notice), “For fiscal year 2022, the USPTO estimates it expended more than $15 million in incurred costs associated with examiners considering the merits of AFCP 2.0 submissions. This cost is in addition to the time spent by examiners to initially evaluate the AFCP 2.0 request for program compliance, interview time, and any additional consultation with supervisors and primary examiners.”

The USPTO proposed a new fee for participation in the AFCP 2.0 on April 3, 2024 when setting patent fees for fiscal year 2025.  According to the USPTO, because the public was not widely receptive to paying a new fee for AFCP 2.0, the USPTO decided to terminate the program.

According to the USPTO Notice,

Applicants still have various options available for after final consideration. For example, under routine examination practice, after the close of prosecution, proposed amendments that will place the application either (1) in condition for allowance or (2) in better form for appeal, may be entered. See 37 CFR 1.116(b).

Additionally, an examiner may have an interview with the applicant to advance prosecution. See sections 713.09 and 714.12 of the Manual of Patent Examining Procedure (9th ed., Rev. 07.2022, February 2023) (MPEP), … Moreover, applicants still have the option to file a pre-appeal brief request for review at the time of the filing of a notice of appeal, which provides applicants with the opportunity to have a panel decide if an issue for appeal is, in fact, present in the record. See section 1204.02 of the MPEP.

If Applicants desire to take advantage of the AFCP 2.0, the AFCP 2.0 request must be filed before December 15, 2024.

For further information, please contact Staas & Halsey LLP at info@s-n-h.com