What is an AFCP request?

The After Final Consideration Pilot (AFCP) Program 2.0 is a continuing effort by the USPTO to streamline responses to Final Office Action rejections. AFCP 2.0 authorizes additional time for the examiner to search prior art and consider an after-final response. An AFCP request might make under certain circumstances. Much will depend on the examiner and the particular circumstances of each case.

Assuming an AFCP 2.0 submission is compliant, the key factor in granting the request depends upon how much time the examiner estimates the additional search and consideration will require.

An AFCP response must include an amendment to at least one independent claim, and the amendment cannot broaden the scope of the independent claim in any respect.  The applicant must be willing and available to participate in any interviews requested by the examiner.  If the AFCP request is rejected, the examiner will issue an Advisory Action. Required certifications by the applicant are provided in the AFCP 2.0 USPTO Form.

Since AFCP does not toll the deadline for responding to a Final Office Action, it’s best to submit an AFCP request early so that extension fees can be avoided or minimized if the request is rejected.

Why file an AFCP response?

One of the main advantages of a granted AFCP reply is the opportunity to file after-final without having to file an RCE. This saves the applicant significant USPTO fees (as of the date of this post: $600 for 1st RCE, $850 for 2nd and subsequent RCE for a small entity).

Another benefit is an opportunity to talk to the examiners if they initiate an interview. An examiner interview in response to an AFCP 2.0 response often leads to mutually agreeable claim language that will facilitate allowance of the patent application.

When is AFCP appropriate?

This is a judgment call that will depend upon the type of claim amendment and the disposition of the examiner. If the claim amendments narrow the scope and cause the examiner to feel that further searching of the prior art would not be extensive, then there’s a good probability that AFCP will be granted and considered.

Why are AFCP requests often rejected?

One of the biggest factors for rejecting an AFCP request is the amount of time the examiner believes will be required to search the prior art as necessitated by the claim amendments. If AFCP is rejected, the applicant will most likely want to follow up with a prompt Request for Continued Examination.

How will you know if an AFCP request will be granted?

One effective way to see if an examiner might entertain an AFCP response is to conduct an Examiner Interview prior to filing the request. If the examiner is not receptive, it would be best to find out sooner and save yourself the hassle of  making the request.

How long will AFCP 2.0 be available?

AFCP 2.0 has been extended through Sept. 30, 2020. AFCP has subsequently been extended to Sept. 30, 2021.

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Vic Lin

Startup Patent Attorney, Cofounder at Innovation Capital Law Group
We align ourselves with Davids fighting Goliaths. Our registered patent attorneys help innovators get IP that drives funding, growth and sales. Email or call us so we can get to work on your IP: (949) 223-9623 | vlin@icaplaw.com

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