Other options in the post-AFCP era - New options for accelerated examination of U.S. patent applications

The "Post-Final Review Pilot 2.0 Program" (AFCP 2.0 Program) provided by the USPTO for patent applicants will end on December 14, 2024. The program started in 2013 and was originally planned to last only one year, but it has been maintained to this day. The USPTO report shows that 60,000 applications have been submitted each year under the program since 2016. Now that AFCP is about to end, are there any other options for patent applicants to speed up the patent application process in the United States?

Applicants applying for invention patents in the United States may consider the following strategies:

Option 1: Submit a response within 2 months from the date of Final OA <br>Although there is no longer an option to meet with the examiner without the AFCP program, responding within 2 months from the date of Final OA will ensure that the applicant has communication with the examiner, usually an Advisory Action or a Notice of Allowance, and the applicant does not need to pay any extension fees. However, if the applicant submits a response after the 2-month due date, there is no guarantee that the examiner will take action on the response before the final 6-month due date, and an extension fee is more likely to be required. There is no fee to submit a response in a timely manner, so this strategy is cost-effective.

Option 2: Meet with the USPTO Examiner <br>In the absence of AFCP, the examiner may decide at his/her discretion to allow or deny a meeting after Final OA, but the interview is free of charge. Applicants may consider having a frank communication with the examiner about possible arguments and/or claim amendments before filing a response in order to have a more persuasive influence on the examiner. The interview may also provide applicants with more information, allowing them to abandon the application without responding to the office action, whether or not an RCE is filed, before spending the time and expense of filing an expensive Request for Continued Examination (RCE) or appeal.

Option 3: Meet with the examiner before Non-Final OA <br>Without the AFCP procedure, the applicant must consider trying to meet with the examiner after the Non-Final. The importance of this meeting may be greater than 10 years ago.

Option 4: Pre-Appeal
Similar to filing an AFCP application, filing a pre-appeal (requesting a meeting and submitting up to 5 pages of comments) provides the examiner with more time to consider the documents submitted. The pre-appeal also provides two additional examiners to review the applicant's submissions, which can be particularly helpful in certain circumstances, as the new office opinion may help expose weaknesses.

However, a pre-appeal requires the applicant to pay more fees. And because all pre-appeal arguments must be provided in no more than 5 pages, this may be more difficult when the rejection is large and complex, and the applicant has never filed something similar before.

Option 5: Make a request directly to the Director
After filing the Advisory Action Final OA, the applicant may file a petition directly with the Director under 37 CFR 1.181 for further review of the examiner's failure to consider the final claim amendments. However, filing this petition does not invalidate the six-month deadline for the OA response. Given the unpredictability of the timing of grant decisions, if this petition is not accepted by the six-month deadline, the applicant will most likely still need to file an RCE or appeal.