[author: Donald Zuhn]

On Monday, the U.S. Patent and Trademark Office announced that it will be implementing a new After Final Consideration Pilot (AFCP) program, which will allow applicants and examiners to work together in after final situations to move applications toward allowance.  In particular, the AFCP program provides examiners with a limited amount of non-production time to consider responses filed following a final rejection.  For utility, plant, and reissue applications, the limited amount of non-production time will be three hours (design applications will be afforded one hour).  According to the Office's announcement of the new program, "[e]xaminers will be encouraged to use their professional judgment to decide whether a response can be fully considered, including any additional search required, within the time limit in order to determine whether the application is in condition for allowance."

The Office has created a separate webpage for the new AFCP program, which indicates that the term of the pilot program is currently planned for the third quarter of 2012.  The Office's AFCP webpage also includes a link to notice providing guidelines for the consideration of responses after final rejection under the AFCP program.  The notice indicates that "[o]nce a final rejection that is not premature has been entered in an application, there is no right to unrestricted further prosecution," but "[i]n limited situations further amendments or arguments may be considered."  The notice lists six situations in which a response after final rejection should be entered:

1.  The amendment places the application in condition for allowance by canceling claims or complying with formal requirement(s) in response to objection(s) made in the final office action.
2.  The amendment places the application in condition for allowance by rewriting objected-to claims in independent form.
3.  The amendment places the application in condition for allowance by incorporating limitations from objected-to claims into independent claims, if the new claim can be determined to be allowable with only a limited amount of further consideration or search.
4.  The amendment can be determined to place the application in condition for allowance with only a limited amount of further search or consideration, even if new claims are added without cancelling a corresponding number of finally rejected claims.
5.  The amendment can be determined to place the application in condition for allowance by adding new limitation(s) which require only a limited amount of further consideration or search.
6.  The response comprises a perfected 37 CFR 1.131 or 37 CFR 1.132 affidavit or declaration (i.e. a new declaration which corrects formal defects noted in a prior affidavit or declaration) which can be determined to place the application in condition for allowance with only a limited amount of further search or consideration[.]

The notice indicates that when an examiner determines that "the nature and extent of the amendments or arguments presented in the response can be fully considered within the limited amount of time authorized by the [AFCP]," the examiner should consider the after final response, and when the examiner determines otherwise, the examiner "should treat the response according to current practice, without non-production time authorized."  The notice also indicates that an allowance is not a required end result for an examiner to be afforded the additional amount of non-production time to consider an after final response.  The notice, however, provides two limitations to the above.  In particular, examiners will not be allotted non-production time in situations 1 and 2 above, because such amendments are normally to be entered under current after final practice, and examiners will get two hours of non-production time if an interview is conducted (examiners will still get three hours of total time, with one hour being credited for the interview).

The Office notes that it will be assessing the new pilot program to determine whether the additional time for after final consideration of applications will lead to an increase in allowances and a decrease in the number of Requests for Continued Examination that are filed.