Legal Alert: USPTO’s AFCP 2.0 Program to End December 14

The United States Patent and Trademark Office (USPTO) has announced that the After Final Consideration Pilot Program (AFCP 2.0) will expire on December 14. The current program will remain in effect until that date.  

The USPTO launched AFCP 2.0 in 2013 with the goal of improving the pendency of patent applications by reducing Requests for Continued Examination and encouraging collaboration between applicants and examiners. To be eligible for consideration under the program, the applicant must file a response under 37 CFR §1.116, which must include a request for consideration under AFCP 2.0 and an amendment to at least one independent claim that does not broaden the scope of the claim in any way. The examiner will then determine whether he or she will be able to consider the amendment within the limited time allotted by the program. If so, the examiner will consider whether the amendment places the application in condition for allowance. If it does, the examiner will enter the amendment and mail a notice of allowance. If it does not, the examiner will schedule an interview with the applicant. Following the interview, the examiner will issue a response consistent with current practice concerning responses after final rejections.  

According to the USPTO, applicants have filed more than 60,000 AFCP 2.0 requests annually since 2016. Due to such high usage coupled with the fact that there is no additional fee for participation, the cost to the Office of administering the program is significant. In April 2024, the Office proposed a new fee for participation in AFCP 2.0 as part of its patent fee adjustments for FY 2025, explaining that it would consider terminating the previously free program unless it could offset some of the costs of running it through the proposed fee. The comments the Office received in response to the proposal led it to conclude that there was insufficient public support for the new fee and that the program would be terminated.  

Takeaway 

The last day to file a request for consideration under AFCP 2.0 is December 14, 2024. Applicants wishing to take advantage of the program should act quickly to file their requests before the program ends. In particular, applicants with applications that are after final rejection, but that are potentially close to allowance with relatively minor amendments or clarifications, may want to consider one final AFCP 2.0 request to provide the examiner with a chance to review their case.