The sun is officially setting on the United States Patent and Trademark Office’s (USPTO) After Final Consideration Pilot Program 2.0 (AFCP 2.0)[1]. This program, which has been instrumental in facilitating patent prosecution efficiency, will officially conclude on Saturday, December 14, 2024. Applicants wishing to file a request under AFCP 2.0 must do so on or before this date, as requests submitted afterward will not be accepted, nor will any accompanying submissions be considered.
The AFCP 2.0 was created to advance prosecution of patent applications by offering applicants a streamlined mechanism to address final rejections in patent applications without the need for formal appeals or further filings. The program, which required at least one non- broadening amendment to an independent claim, was meant to foster collaboration between the applicant and the examiner by providing examiners with additional time to evaluate after-final responses, conduct targeted searches, and hold interviews with applicants without charging any additional fees. Indeed, the potential for continued examination of an application on the cheap resulted in more than 60,000 AFCP 2.0 requests per year since 2016, straining USPTO resources. Following public pushback against a proposed new fee to offset the cost of the AFCP 2.0, the USPTO announced[2] that the program would be allowed to expire.
As AFCP 2.0 sunsets, applicants and practitioners may want to reevaluate their strategies, focusing on compliance and efficiency. By embracing potential practices like timely filings, interviews, and thoughtful responses to final rejections, applicants may navigate these changes more effectively. For example, even after AFCP 2.0 concludes, applicants can still submit responses to final rejections under 37 CFR § 1.116[3]. To further prosecution, consider (1) filing a response within two months of the final rejection to trigger an Advisory Action prior to expiration of the initial 3-month period for response, and (2) scheduling an examiner interview, as allowed under MPEP 713[4], to discuss outstanding issues. An After Final Response allows the examiner to evaluate whether the amendments or arguments in the response place the application in condition for allowance or necessitate further prosecution. If the response does not resolve all issues, the Advisory Action will outline remaining deficiencies and options for continuing prosecution (e.g., filing an RCE, appeal, or further amendments). This practice may help ensure efficient prosecution by clarifying the path forward after a final rejection. Although the AFCP 2.0 is ending, its principles—collaboration, efficiency, and timely communication—remain foundational. These values should continue to guide the patent prosecution process, ensuring smoother interactions and more strategic approaches to overcoming final rejections.
Editor: Brenden S. Gingrich, Ph.D.
[1] See https://www.uspto.gov/patents/initiatives/after-final-consideration-pilot-20
[2] See https://www.federalregister.gov/documents/2024/10/01/2024-22481/extension-and-termination-of-the-after-final-consideration-pilot-program-20
[3] See https://www.law.cornell.edu/cfr/text/37/1.116
[4] See https://www.uspto.gov/web/offices/pac/mpep/s713.html
