USPTO to Terminate the After Final Consideration Pilot Program 2.0 for Patent Prosecution

Traditionally, a response to a Final Office Action (“FOA”) issued by the United States Patent and Trademark Office (“USPTO”) often involves filing a Request for Continued Examination (“RCE”) in order for the Examiner to consider further claim amendments.  In 2013, the USPTO launched the After Final Consideration Pilot program 2.0 (“AFCP 2.0”) as an alternative.  The AFCP 2.0 program allows patent applicants to request consideration of an amendment after a FOA without additional fees and grants examiners extra time to review the after-final amendment.  This provides applicants the chance to file after-final amendments without incurring the significant fees associated with an RCE.  The AFCP 2.0 program also provides an opportunity for applicants to have an interview with the Examiner and this increased communication often led to efficient resolution of prosecution. 

The USPTO has extended the AFCP 2.0 program multiple times, with the latest extension ending on September 30, 2024.  However, the popularity of the AFCP 2.0 program has led to substantial administrative costs for the USPTO.  In April 2024, the USPTO proposed charging fees for AFCP 2.0 requests to offset the administrative costs, but this proposal was met with public disapproval.

Consequently, the USPTO has decided to terminate the AFCP 2.0 program, with the program set to end on December 14, 2024.  Any requests for participation in the program must be filed before that date. After December 14, 2024, applicants will still have options for after-final consideration.  Submitting an amendment under 37 CFR § 1.116 remains available, as does filing an RCE or appeal.  Applicants may also still attempt to request an interview.  Applicants should consider the program’s impending termination when planning their response to a FOA to take advantage of the AFCP 2.0 program while it is still available.