The USPTO has decided to allow the After Final Consideration Pilot Program 2.0 (AFCP 2.0) to expire. To accommodate those who may be in the process of preparing to use the program, the USPTO is providing a short extension of the expiration of the program to December 14, 2024. Saturday, December 14, is the last day to submit a request for participation under the program. Requests for participation filed on Sunday, December 15, and thereafter will not be accepted, and the 37 CFR 1.116 submission, including the after final response, filed with such requests will not be considered or entered. The provisions of 35 U.S.C. 21(b) do not apply to requests filed on Sunday, December 15, or Monday, December 16, because December 14, 2024, is the end of a discretionary pilot program, not the expiration of a period within which an action must be taken or a fee paid. Therefore, requests filed after December 14, are not the “taking [of] any action” as articulated in the 35 U.S.C. 21(b). More information, including various options still available to applicants for after final consideration once the program ends, can be found in our Federal Register notice.
AFCP Response Form (PTO-2323)
The AFCP Response Form (PTO-2323) is designed to enhance communication between the Office and applicant.
In response to an AFCP 2.0 submission, applicant will receive a specialized AFCP 2.0 form (PTO-2323) that will communicate the status of the submission. If applicable, the form will also accompany an interview summary. The form is designed to more clearly indicate how the AFCP submission was treated by the examiner. Office communications containing the AFCP 2.0 response form have been issuing since November 2014.
AFCP 2.0 authorizes additional time for examiners to search and/or consider responses after final rejection. Under AFCP 2.0, examiners will also use the additional time to schedule and conduct an interview to discuss the results of their search and/or consideration with you, if your response does not place the application in condition for allowance. In this way, you will benefit from the additional search and consideration afforded by the pilot, even when the results do not lead to allowance.
To be eligible for consideration under AFCP 2.0, you must file a response under 37 CFR §1.116, which includes a request for consideration under the pilot (Form PTO/SB/434) and an amendment to at least one independent claim that does not broaden the scope of the independent claim in any aspect. Please see the notice published in the Federal Register at 78 Fed. Reg. 29117 for a complete description of how to request consideration under AFCP 2.0. 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.
As always, the option to request an interview with the examiner, consistent with MPEP 713, is available to you irrespective of whether the submission was considered under AFCP 2.0.
If you are considering filing a response to a final rejection under 37 CFR 1.116 that you believe will lead to allowance of your application with only limited further searching and/or consideration by the examiner, you should consider requesting consideration of the response under AFCP 2.0.
Click here for the guidelines related to the consideration of responses under AFCP 2.0.
Form
Form PTO/SB/434 may be used to request consideration under AFCP 2.0.
Dates
The AFCP 2.0 extension is scheduled to run through December 14, 2024; therefore, any request to consider a response after final rejection under AFCP 2.0 must be filed on or before December 14, 2024.
Frequently Asked Questions
Frequently asked questions [PDF] [Last updated September 30, 2024]
Contacts
You may email any question regarding AFCP 2.0 to the AFCP 2.0 mailbox.
Alternatively, you may telephone one of the following:
- for a Patent Center question, contact the Electronic Business Center at 866-217-9197;
- for an application-specific issue with AFCP 2.0, contact Tariq Hafiz, Director, Technology Center 3600, at 571-272-5350; or
- for a question regarding the After Final Consideration Pilot Program 2.0 Federal Register notice, contact Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, at 571-272-7728.