The USPTO has a growing backlog of requests for continued examinations (RCEs). Professor Crouch's article USPTO Takes Action to Reduce RCE Backlog has a chart showing consistent growth from about 20,000 RCEs in March 2009 to 110,000 RCEs in March 2013.
As Professor Crouch noted, the USPTO is interested in reducing the RCE backlog so decided to return to the prior practice of giving examiners the same credit for examining RCEs as original applications. This will help, but the USPTO recognizes it will take more than that.
Thus, recently the USPTO published a Notice on After Final Consideration Pilot Program 2.0 (AFCP 2.0), which is also intended to tackle the RCE backlog. AFCP 2.0 basically allots time for the examiner to consider responses filed after a final rejection. AFCP 2.0 is effective May 19, 2013 to September 30, 2013.
To participate the AFCP 2.0 papers must reply to a final rejection and include (1) a transmittal form (e.g., PTO/SB/434) that requests AFCP 2.0 consideration; (2) an amendment to an independent claim that does not broaden its scope; (3) a statement applicant can interview the case with the examiner; and (4) use of the Electronic Filing System (EFS). Other PTO fees (e.g., an extension or extra claim fees) for the response must still be paid, but AFCP 2.0 request doesn't entail another PTO fee.
Upon receipt of the AFCP 2.0 submission, the examiner will verify if it's complete. If incomplete, the submission is handled according to after final practice, 37 CFR 1.116. If the examiner determines the AFCP 2.0 submission is complete, but doesn't result in allowance, the examiner will request an interview. The examiner will use the AFCP 2.0 time allotted (e.g., three hours) to review the response and interview. The AFCP 2.0 may help reduce the RCE backlog, but not if examiners hold the responses typically require further search or consideration that exceeds the allotted time. Further, allotting three hours to review a response, search the prior art, determine patentability, and interview the case may prove insufficient for examination of complex subject matter.
Copyright © 2013 Robert Moll. All rights reserved.