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When a Final Rejection is not Entirely Final


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After_Final_Program_USPTO_FormLast year the United States Patent & Trademark Office had experimented with an “after final” procedure to help clear the backlog of cases that grind through the system.  Typically, a patent application is rejected upon first review.  The patent attorney usually amends the claims and makes arguments as to why the patent claims are now allowable.  If the amendments substantially change the scope of the claimed invention, the examiner may issue a final rejection based on new prior art found in another search. 

The patent applicant may then have to head back to the end of the line by filing a Request for Continued Examination (RCE) which may not be reviewed for another year or two.

In the recently announced After Final Consideration Pilot (AFCP) 2.0, patent examiners are given some extra time on their docket to give the applicant another “bite at the apple” and close the case out.  Unlike the original pilot, AFCP 2.0 is more formalized and even has its own form to file.  The rules:

  1. Final:  Must be in response to a final rejection;
  2. Amendment: Must amend at least one independent claim and not broaden it in any way;
  3. Interview: Must be willing to participate in an interview (typically on the phone); and
  4. Form: Must file the AFCP 2.0 form electronically.

There really isn’t much to lose by trying the AFCP 2.0 procedure.  Anecdotally, patent examiners didn’t seem keen on the AFCP 1.0 program.  However, by formalizing the requirements one can only hope this will lead to a shorter and more efficient patent prosecution.

This program (unless subsequently extended) will expire December 13, 2013.

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