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The End of an Era: AFCP 2.0 Sunset Approaches

Posted by Wes Schwie | Oct 08, 2024 | 0 Comments

The United States Patent and Trademark Office (USPTO) recently announced the termination of the After Final Consideration Pilot Program 2.0 (AFCP 2.0), marking the end of an era for patent Applicants. This program, which offers a streamlined path to resolving patent applications after a final rejection, will officially conclude on December 14, 2024.

What is AFCP 2.0?

AFCP 2.0 provides Applicants a valuable opportunity to re-engage with Examiners after receiving a final rejection. It allows for:

  • Additional search time: Examiners are given extra time to consider amendments and conduct further searches.
  • Structured interviews: Applicants can request an interview with the Examiner to discuss the case and potentially overcome the rejection.

This program has been highly popular, with over 60,000 requests filed annually for the past eight years. AFCP 2.0 is supposed to lead to quicker resolutions and reduce the need for more costly and time-consuming options like a Request for Continued Examination (RCE).

Why is AFCP 2.0 Ending?

The USPTO cites several reasons for ending the program, including:

  • Cost: AFCP 2.0 is costly to administer due to the additional resources required for Examiner search time and interviews.
  • Lack of direct fee recovery: Unlike other USPTO services, AFCP 2.0 did not have a dedicated fee, meaning its costs are not directly recovered from Applicants.
  • Proposed fee faced opposition: The USPTO explored implementing a fee for AFCP 2.0, but this proposal was met with significant resistance from the patent community.
What are the Alternatives?

With the end of AFCP 2.0, Applicants facing final rejections will need to rely on traditional options, such as:

  • Amendment after final rejection: Submitting amendments under 37 CFR § 1.116 to place the application in condition for allowance or better form for appeal.
  • Requesting an interview: While not guaranteed, Applicants can still request interviews with Examiners under MPEP 713 to discuss the case and potential resolutions.
  • Filing an RCE: This allows Applicants to continue prosecution by paying a fee and submitting further arguments, amendments, or evidence.
Looking Ahead

The termination of AFCP 2.0 represents a shift in the patent prosecution landscape. Applicants and practitioners will need to adjust their strategies for overcoming final rejections. While the program's end may present challenges, it also highlights the importance of clear communication with Examiners and meticulous preparation throughout the prosecution process.

Important Note: Although AFCP 2.0 is ending, the USPTO has granted a short grace period. Applicants can still file AFCP 2.0 requests using Form PTO/SB/434 until December 14, 2024. This is a developing situation, and Applicants should stay informed about any further updates or changes from the USPTO.

How Gallium Can Help

The end of AFCP 2.0 will impact how Applicants approach the entire patent prosecution process, especially in responding to final rejections. We recommend entrusting skilled and experienced patent professionals with your patent application. If you would like to discuss how this change may impact your patent portfolio, please call us at 651-256-9480 or fill out this Contact Form to schedule a meeting.

About the Author

Wes Schwie

Wesley Schwie is the founding Principal of Gallium Law and a registered U.S. patent attorney. Wes' practice encompasses all aspects of intellectual property law, including patent and trademark prosecution, licensing, litigation, portfolio management, due diligence, and infringement and validity counseling...

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