Some pre-grant news today….as detailed previously, the USPTO has launched a new, internal pilot program entitled “After Final Consideration Pilot” (AFCP). The program is designed to foster compact prosecution by encouraging examiner entry of an amendment submitted in response to a final rejection, in limited situations.
If you have submitted such a filing to the USPTO since March 26th, the examiner will determine whether he or she should take advantage of the additional examining time authorized by the pilot to consider the response. Examiners will use their professional judgment to decide whether the response can be fully considered, including any additional search required, within a three hour time limit in order to determine whether the application can be allowed. There is no need to file any special request for consideration of an amendment under this pilot program.
Unfortunately, this program will end on June 16th, (which seems rather short lived in my opinion to get meaningful data). Going forward, the effectiveness of the program will be evaluated relative to the number of RCE filings avoided. While the program certainly cannot hurt, the continued viability of the program is more likely a question of cost effectiveness.
Speaking of after final practice, there is an interesting study authored by Kip Werking (posted on IPWatchdog) that explains BPAI success rates for applicants are closer to 75% rather than the 33% reported by the USPTO. The study points out that, when taking into account appeals that are pulled back by the examiner prior to Board decision (i.e., reopening of prosecution after filing of an appeal brief), that such is tantamount to a Board reversal. ( study here)