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The United States Patent and Trademark Office (USPTO) today announced that the After Final Consideration Pilot Program 2.0 (AFCP 2.0) will be allowed to expire. Originally launched in 2013 to facilitate better interaction between patent applicants and examiners after a final rejection, AFCP 2.0 provided a framework for further consideration of claims without the need for expensive and time-consuming appeals or Requests for Continued Examination (RCEs). The program's expiration marks the end of a decade-long pilot, but the USPTO has extended the deadline for final requests under the program until December 14, 2024.

What Was AFCP 2.0?

AFCP 2.0 was designed to offer applicants a final opportunity to amend claims in a way that could lead to patent allowance without requiring the filing of an RCE. The program allowed examiners to be granted additional time to review an applicant’s amendments or arguments made after a final rejection under 37 CFR § 1.116, particularly focusing on amended independent claims that did not broaden their scope.

Examiners participating in the program were authorized to conduct additional prior art searches or otherwise consider the amended claims. Crucially, AFCP 2.0 also included an opportunity for applicants to have an interview with the examiner to discuss the outcome of the additional review. This increased communication could often lead to more efficient resolution of outstanding issues, potentially avoiding further rounds of prosecution or appeals.

The Expiration: What It Means for Applicants

While the USPTO has decided to end AFCP 2.0, the agency has granted a short extension through December 14, 2024, for those in the process of preparing submissions. This means that any requests for participation under AFCP 2.0 must be filed before that date using Form PTO/SB/434.

After this deadline, applicants will no longer have access to the benefits of AFCP 2.0, such as the additional search time and the structured interview with the examiner. However, the USPTO will continue to offer other options for after-final consideration, including the standard amendment submission under 37 CFR § 1.116 and the ability to request interviews under MPEP 713.

How AFCP 2.0 Worked

As we discussed in our blog post, Navigating Final Rejections in Patent Prosecution: AFCP 2.0 vs. 37 CFR § 1.116: | Volpe Koenig (vklaw.com)) Applicants filing under AFCP 2.0 would need to submit an amendment to at least one independent claim. The amendment had to be narrow enough to not broaden the claim’s scope, thereby ensuring it stayed within the boundaries set by the prior art. The request was made using Form PTO/SB/434, and if the submission qualified for further consideration, the examiner could conduct additional searches and provide feedback on whether the application could be allowed.

If the examiner determined that the amended claims could not be allowed, the applicant was entitled to an interview under the program to discuss the results. These interviews provided applicants with greater insight into the examiner's concerns and gave them a final opportunity to clarify claim language or arguments before resorting to more formal procedures like RCE or an appeal.

Key Takeaways for Applicants Before December 14, 2024

For those still considering submitting a request under AFCP 2.0, here are some practical tips:

1. Eligibility: Ensure that your response under 37 CFR § 1.116 includes a request for AFCP 2.0 consideration using Form PTO/SB/434. An amendment to at least one independent claim must be included, and the amendment should not broaden the claim’s scope.
2. Timing: Requests must be submitted by December 14, 2024. If you’re on the fence about using AFCP 2.0, keep this deadline in mind to avoid missing out on the program's potential benefits.
3. Benefits of AFCP 2.0: Even if your amended claims are not ultimately allowed, the interview process provides an opportunity to engage with the examiner and gain valuable feedback. This additional communication can help clarify any lingering issues before escalating the case further.
4. Alternative Options: After AFCP 2.0 expires, applicants will still have options for after-final consideration. Submitting an amendment under 37 CFR § 1.116 remains available, as does filing an RCE, and the option to request interviews with examiners will continue under the MPEP.

Moving Forward: Alternatives to AFCP 2.0

Once AFCP 2.0 sunsets, applicants seeking to advance their applications post-final rejection will still have several tools at their disposal. These include:

• Amendments under 37 CFR § 1.116 within  2-months

When an applicant files a response to a final rejection under 37 CFR § 1.116 within two months from the mailing of the final rejection, the USPTO may issue an advisory action if the examiner determines that the response does not place the application in condition for allowance. Advisory actions inform the applicant that the examiner has reviewed the post-final submission but that the case remains unallowable. Importantly, filing a timely response within the two-month window can prevent the application from being abandoned while the advisory action is pending, and can also extend the applicant’s opportunity to file a Request for Continued Examination (RCE) or notice of appeal without incurring additional late fees.

• Amendments under 37 CFR § 1.116 after 2 months;

This rule continues to allow applicants to file amendments, arguments, or evidence after a final rejection. However, without the extra search time granted under AFCP 2.0, examiners may have more limited flexibility in considering these submissions.

• Request for Continued Examination (RCE):

Filing an RCE remains a popular option for applicants who wish to keep their application alive after a final rejection. While an RCE can be more costly than AFCP 2.0, it essentially restarts prosecution, providing more opportunities to negotiate claim language with the examiner.

• Appeals:

For applicants who believe their claims have been improperly rejected, an appeal to the Patent Trial and Appeal Board (PTAB) is another option. While this process can be more time-consuming, it provides a formal avenue for challenging an examiner’s decision.

Conclusion

As the USPTO sunsets AFCP 2.0, applicants have until December 14, 2024, to take advantage of this helpful program. After that, it will be critical to evaluate the remaining options for after-final consideration. Whether through RCEs, interviews, or appeals, there are still pathways available to secure a patent even after receiving a final rejection. However, for those looking to avoid additional costs or delays, taking advantage of AFCP 2.0’s final window might be the best option.