After Final . . . Now What?

The After Final Consideration Pilot 2.0 (AFCP 2.0) program that launched on May 19, 2013, now extends through September 30, 2016. The AFCP 2.0 program allots more time to examiners to search and/or consider submissions after final rejection. The program also allows examiners to use additional time to schedule and conduct an interview if an applicant’s submission does not place the application in condition for allowance. AFCP 2.0 is also free; there is no fee to file the AFCP 2.0 request.

To be eligible for the AFCP 2.0, an application must be a utility, design, or plant non-provisional application that has received a final rejection. Eligible applications include national stage applications and continuing applications (e.g., divisional or continuation applications), but not reissue and reexamination applications. In addition, only one request for consideration under AFCP 2.0 may be filed in response to an outstanding final rejection. Second or subsequent requests for consideration under AFCP 2.0 filed in response to the same outstanding final rejection will be processed consistent with current practice concerning responses after final rejection under 37 CFR 1.116.

In order to participate in AFCP 2.0, an applicant must include the following at filing:

1. A request for consideration under AFCP 2.0 (Form PTO/SB/434); and
2. A response under 37 CFR 1.116, including an amendment to at least one independent claim that does not broaden the scope of the independent claim in any aspect.

In response to the AFCP submission, an applicant will receive a specialized AFCP 2.0 form (PTO-2323) that communicates the status of the submission. If an interview is conducted, the form will also accompany an interview summary.

One can request an examiner interview after final in the ordinary course, but it is up to the discretion of the examiner as to whether to grant that interview request. Here, under the AFCP 2.0 program, the examiner is given additional time to search and/or consider the response, but also it gives applicants an additional opportunity to discuss the application with the examiner, if the response does not place the application in a condition for allowance. To date, the USPTO has not published statistics on the AFCP 2.0 program.