After Final Consideration Program Updates from US Patent Office

Oct 28, 2014

Examiner interviews are crucial to obtaining quicker prosecution and stronger patents. Interviews after a first examination occur as a matter of right, but what about after a second examination? Good news, the After Final Consideration Pilot 2.0 (AFCP 2.0) has been extended through September 30, 2015 to ensure inventors continue to have the ability to obtain a second interview with the examiner. A new feature has been included to increase the clarity of how the examiner treated your submission.

As background, during patent prosecution the government filing fees pay for 2 examinations by an examiner. As a matter of right, an interview may be conducted with the examiner after the first examination. The interview may be done over the phone, via video conference calling, or in person at the patent office in DC. If a second examination results in more rejections, an applicant may request an interview but the examiner is under no obligation to do so at this stage, unlike with the first examination. These interviews are very useful in negotiating and isolating the point of novelty with the examiner and can greatly help in obtaining a notice of allowance. Each of these interviews are performed before a response is officially filed to the examination results.

As in the past, AFCP 2.0 authorizes additional time for examiners to search and/or consider responses after a final rejection. If the application is not in condition for allowance, the examiners will use the additional time to schedule and conduct an additional interview. As part of the new AFCP, the applicant will receive a specialized AFCP 2.0 form (PTO-2323) that will communicate the status of the submission. The form may also include an interview summary. The new form is designed to more clearly indicate how the AFCP submission was treated by the examiner. Use of the new forms can be expected in November 2014.

To be eligible for consideration under AFCP 2.0, you must file a response with a request for consideration under the pilot (Form PTO/SB/434) as well as an amendment to at least one independent claim that does not broaden the scope of the independent claim in any aspect. As was the case with the AFCP, examiners will continue to use their professional judgment to decide whether the response can be fully considered under AFCP 2.0. This will include determining whether any additional search is required and can be completed within the allotted time, in order to determine whether the application can be allowed.

From experience, the best method to increase the allowance rate of patent applications is good interviews with the examiners. Interviews also help to speed up patent prosecution and decrease costs. Faster patents and lower patent fees are always a desire of our clients. Contact us today if you want us to analyze your position and suggest ways in which to speed up prosecution and decrease fees in your patent application.

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