Some pre- grant news of note this week. Last Friday the USPTO announced the After Final Consideration Pilot Program 2.0 (Federal Register Notice here). The revised pilot program modifies the initial concept by introducing a patent examiner feedback component.
Recall that the USPTO launched version 1.0 as the “After Final Consideration Pilot” (AFCP) to foster compact prosecution and to slow the growing RCE backlog. The pilot program allotted additional productivity time to patent examiners in exchange for their consideration of after final amendments that might result in allowance of the application. Prior to the pilot program even amendments requiring nominal further consideration were routinely denied under 37 C.F.R. § 1.116.
Under the terms of the first version of the pilot, examiners decided whether the after final amendment could be fully considered, including any additional search required, within the three hour time limit provided for by the program. (i.e., fully considered and allowed). There was no need to file any special request in the previous version of the program.
Recognizing that some examiners were treating such submissions inconsistently, and that unsuccessful amendments proceeded along the normal course without any additional added value (e.g., acknowledgment/feedback from the examiner), the USPTO has provided for examiner further communication in version 2.0.
Under the terms of the revised pilot program, applicants must:
-submit an amendment (narrowing only, no broadening) of at least 1 independent claim.
-submit a form to participate in the pilot that indicates a willingness to interview the examiner should the amendment fail to result in allowance of the application.
-Only one request per application is permitted.
If the amendment does not result in allowance, the examiner must contact the applicant to schedule an interview to discuss the result.
Note: this program does not apply to patent reexamination or reissue proceedings.