No More AFCP 2.0!

In a Notice by the U.S. Patent and Trademark office dated October 1, 2024, the USPTO announced that the After Final Consideration Pilot Program 2.0 (AFCP 2.0) will end on December 14, 2024.

After proposing a new fee for participation in the AFCP 2.0 for fiscal year 2025 to offset the cost of the program, the USPTO received negative feedback from the public about the proposed fee and is terminating the program.

AFCP 2.0 allowed an applicant upon request to respond to an after final rejection with a non-broadening amendment to at least one independent claim. The goal of the AFCP 2.0 was to improve pendency by reducing the number of Requests for Continued Examination (RCE) and encourage collaboration between the applicant and the examiner to effectively advance prosecution of the application.

The USPTO repeatedly extended the pilot program started in 2013, with the most recent extension set to end on September 30, 2024. Since 2016, more than 60,000 AFCP 2.0 requests were filed annually.

Practitioners may have to adjust their strategies in light of the removal of the AFCP option. The Notice highlights other options still available to applicants for after-final consideration:

• 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 (See 37 CFR 1.116(b));
• examiner interview (See M.P.E.P. § 713.09 and 714.12); or
• file a pre-appeal brief request for review at the time of the filing of a notice of appeal (See M.P.E.P.§ 1204.02).

See https://www.uspto.gov/patents/initiatives/after-final-consideration-pilot-20

RCE’s are also still available as an after-final prosecution tool.