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On October 1, 2024, the United States Patent and Trademark Office (USPTO) announced that it would terminate its After Final Consideration Program 2.0 on December 14, 2024. The project was launched on May 19, 2013, with the aim of speeding up examination by reducing the number of RCEs and encouraging applicants and examiners to effectively advance the examination progress of patent applications through meetings. The project has been continuously extended from the initial one-year plan to the present.
Under AFCP 2.0, the applicant can submit a response to the Final OA, including amendments to at least one independent claim. If the examiner determines that some of the claims are eligible, the examiner will arrange a meeting with the applicant. AFCP 2.0 does not charge any official fees.
At present, the USPTO has decided to terminate the AFCP 2.0 program. The main reason is that the management cost of AFCP 2.0 is too high. According to statistics, the management cost of AFCP2.0 has exceeded 15 million US dollars in 2022 alone. Although the USPTO had previously proposed a fee standard of 100-500 US dollars for AFCP 2.0, after receiving a lot of feedback from the public on the fees, it finally decided to terminate the AFCP2.0 project. Therefore, applicants who intend to respond to AFCP 2.0 must submit a response before the project is terminated on December 14, 2024.
After the termination of AFCP2.0, if the applicant disagrees with the final examination opinion rejecting his claims, he can still submit a standard examination opinion response, but whether the examiner approves the response can only be decided by the examiner. The opportunity for applicants to meet with examiners under AFCP 2.0 will no longer exist. Applicants can still continue to apply for patents in the form of RCE.
After terminating AFCP2.0, the USPTO will launch another alternative program, namely the Pre-Appeal Brief Request for Review. This project will consist of a review team including a supervisory patent examiner (SPE), an examiner and at least one expert to speed up the examination process in another way.
A request for a pre-litigation summary review must be filed at the same time as the appeal request. A maximum of 5 pages of brief explanations and arguments are allowed. The fee ranges from $168 to $840 depending on the applicant's qualifications. The review panel will make a decision within 1-2 months after receiving the request for a pre-litigation summary review. If the request is successful, the rejection will be revoked and a new review opinion will be issued. If the request is unsuccessful, but there is still at least one item to be appealed, the applicant can still file an RCE request or submit a complete appeal request to continue the appeal process.
If the appeal continues, the Patent Appeal Board (PTAB) will make a decision on the patent application. The fee is between $472 and $2,360 depending on the size of the applicant. If the applicant chooses an oral hearing, the cost of the oral hearing is between $272 and $1,360. The average time for the PTAB to make a decision is about 12 months. During this period, the applicant can file a request for accelerated appeal review. The Fast-Track Appeal Pilot Program will shorten the time to obtain a decision from 12 months to 6 months.
